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Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/expositionofconsOOflanrich 


AN  EXPOSITION 


Constitution  of  the  United  States. 


FOURTH  EDITION,  REVISED. 


HENRY  FLANDERS, 

!<  AUTHOR  OK  A  '   TREATISE  ON  MARITIME  LAW,"  "  THE  LAW  OF  8HIPPINQ," 
**  THE  LAW  OF  FIRE  INSURANCE,"  ETC.,  ETC. 


V/^   OP  THE         n^ 

(UNIVERSITY) 


PHILADELPHIA: 

T.   &  J.   W.  JOHNSON  &  CO., 

535  Chestnut  Street. 

1885. 


s 1. 


Entered,  according  to  Act  of  Congress,  in  the  year  1S85,  by 

HENRY  FLANDERS, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


ZfVff 


PREFACE. 

VTO  argument  would  seem  to  be  necessary  to  prove  the 
.<A^  importance  to  the  citizens  of  the  United  States  of 
an  accurate  knowledge  of  the  theory  and  practical  char- 
acter of  the  Federal  Constitution.  Either  directly  or 
indirectly  they  participate  in  the  administration  of  the 
government  which  that  Constitution  has  instituted,  and 
surely  they  should  be  well  grounded  in  the  principles 
upon  which  it  is  founded. 

It  has  been  the  endeavor  of  the  author  in  the  following 

pages  to  supply  a  convenient  manual  of  instruction  to 

the  youth  of  our  country ;  to  make  clear  and  intelligible 

I  to  the  unprofessional  reader  the  fundamental  law  of  our 

Federative  system  of  government ;  and  at  the  same  time 

I  to  produce  a  work  which  might  also  be  useful  to  the  bar. 

In  preparing  it,  he  has  sought  to  set  forth  the  reasons 

upon  which  each  clause  of  the  Constitution  rests,  as  well 

as  the  interpretation  that  has  been  given  to  it  by  the 

authoritative  exposition  of  the   courts,   (and  so  far  as 

practicable,  in  the  precise  language  of  the  courts),  or  by 

the  well-established  practice  of  the  government. 

iii 


CONTENTS. 


ORIGIN  OF  THE  CONSTITUTION. 

The  Union  of  the  Colonies    ......  39 

The  Stamp-Act  Congress            .          .          .          .  39 

The  Continental  Congress     ......  40 

Powers  exercised  by  the  Congress      .....  41 

The  Articles  of  Confederation        .....  42 

Powers  of  the  Confederation     ......  42 

Result  of  the  Confederation             .....  44 

Origin  of  the  Federal  Convention      .....  45 

The  Meeting  and  Result  of  the  Convention      ...  46 

Organization  of  the  Government        .....  47 

THE  OBJECT  FOR  WHICH  THE  CONSTITUTION  WAS 
ORDAINED. 

Definitions            ........  49 

How  Constitutions  originate      ......  49 

For  what  purpose  the  Constitution  was  established            •  51 

THE  LEGISLATURE. 

Distribution  of  Legislative  Power      ...  .52 

Importance  of  Two  Branches         •         •         •          •  52 


VI  CONTENTS. 

PAGE 

THE  HOUSE  OF  REPRESENTATIVES. 

When  and  by  whom  chosen       ......  54 

Dependence  of  the  Representative  upon  tho  Constituent   .  .  54 

How  frequently  should  a  Representative  be  elected      .  .  55 

Qualifications  for  Electors      ......  56 

Qualifications  for  a  Representative     .  •  .  .  .57 

Apportionment  of  Representatives  .         •  59 

Slaves  regarded  in  the  Apportionment        .  .  .  .00 

Limit  as  to  the  Number  of  Representatives      ...  61 

A  Census  to  be  taken        .......  01 

Mode  of  Apportionment        ......  62 

Vacancies        .  .  •  •  •  .  •  63 

THE  SENATE. 

Importance  of  a  Senate         ......  65 

How  Constituted 65 

Mode  of  Election Q6 

Elections  to  fill  Vacancies 68 

Certificates  of  Election        .......  68 

Term  of  Office 69 

Vacancies  in  the  Senate        ......  70 

Qualifications  for  a  Senator      ......  70 

President  of  the  Senate         ......  73 

Officers  and  President  pro  tempore      .....  74 

Impeachment       ........  74 

Judgment  in  cases  of  Impeachment  .  .  .  .76 

Persons  liable  to  Impeachment      .  .  .  .  .  77 

Mode  of  Procedure  .  .  .  .  .  •     •     -  78 

THE    ELECTION    OF    SENATORS    AND    REPRESENTA- 
TIVES. 

Power  of  Congress  respecting        .....  79 


CONTENTS.  Vll 

PAGE 

THE  MEETING  OF  CONGRESS. 

How  often  Congress  must  meet .81 

POWERS  OF  THE  RESPECTIVE  HOUSES. 

Each  House  to  Judge  of  the  Elections,  &c.          ...  82 

Contested  Seats 82 

Quorum        ..........  83 

Rules  of  Proceeding 83 

Punishment  of  Members      .......  85 

The  Journal  of  Proceedings .86 

The  Yeas  and  Nays S7 

Adjournments .88 

Duration  of  Congress 88 

PRIVILEGES,  &c,  OF  MEMBERS. 

Compensation 89 

Freedom  from  Arrest 90 

Immunity  of  Debate 92 

Disability  to  hold  Office 92 

THE  PASSAGE  OF  LAWS. 

The  Initiative  of  Revenue  Bills 94 

The  Veto  Power 94 

Joint  Orders,  Resolutions,  <fec 97 

THE  POWERS  OF  CONGRESS. 

Taxation 99 

Different  kinds  of  Taxes J  00 

Rule  by  which  taxes  are  levied 101 

Taxes  may  be  extended  to  the  Territories       ....  103 

Power  to  borrow  money        .......  104 

Commerce        .         .         .         .         .         .         .         .         .         .104 

Naturalization  and  Bankruptcy 109 

Bankrupt  Laws •  112 

Coinage  of  Money       .         . 114 


Vlll  CONTENTS. 

PAGE 

THE  POWERS  OF  CONGRESS. 

Power  to  punish  Counterfeiting       .         .         .         .         .         .116 

Post-Offices  and  Post-Roads 116 

Science  and  Useful  Arts 118 

Copyrights 118 

Patents 119 

Piracies  and  Felonies 120 

War 121 

Letters  of  Marque  and  Reprisal 124 

The  Army 125 

The  Navy 126 

Government  of  the  Army  and  Navy 126 

The  Militia 126 

Seat  of  Government 128 

Jurisdiction  over  Forts,  <fec. 128 

General  Power  of  Congress     .         .         .         .        .        .         .130 

Concurrent  Powers  of  Legislation  in  the  States          •        •  131 

POWERS  DENIED  TO  CONGRESS. 

The  Slave  Trade 133 

Habeas  Corpus 134 

Attainder 137 

Ex  post  facto  Laws 138 

Capitation  Tax 139 

Taxes  on  Exports  prohibited 139 

Preferences  not  to  be  given  to  Ports,  &o 140 

Appropriations 141 

Titles  of  Nobility •         .         •         .142 

POWERS  DENIED  TO  THE  STATES. 

Prohibition  as  to  Treaties 143 

Letters  of  Marque  and  Reprisal     ••••••  144 


CONTENTS.  IX 

PAGE 

POWERS  DENIED  TO  THE  STATES: 

Coinage 145 

Bills  of  Credit 146 

Legal  Tender       .........  147 

Bills  of  Attainder,  &c.     . 147 

Impairing  the  Obligation  of  Contracts         ....  149 
Prohibition  as  to  Imposts        .         .         .         .         .         .         .154 

Tonnage  Duties 157 

Troops  and  Ships  of  War         .         .         •    -    •         .         .         .158 

Compacts      .         . ,  359 

Prohibition  as  to  War 160 

Implied  Prohibition  as  to  Taxation     ....  160 

THE  PRESIDENT. 

General  Observations 162 

Unity  of  the  Executive 163 

Term  of  Office 164 

Mode  of  Election 164 

Time  of  Election 168 

Qualifications  for  President 170 

Disability  of  the  President 172 

His  Salary 173 

His  Oath 175 

His  Powers .         .  175 

Commander-in-chief  of  the  Army 176 

Executive  Departments 178 

Reprieves  and  Pardons 180 

Treaty  Power 181 

Nominations  to  Office      .         .         .         .        •         •         •         .183 

Removals  from  Office •         .  185 

Power  to  fill  Vacancies 185 

His  Communications  to  Congress          .....  187 


Xll  CONTENTS. 

PAGE 

PUBLIC  DEBT,  SUPREMACY  OF  THE  CONSTITUTION. 

Oath  of  Office 244 

No  religious  test 244 

Ratification  of  the  Constitution 245 

AMENDMENTS  TO  THE  CONSTITUTION. 

History  of    . 246 

Character  of  the  Amendments 247 

Freedom  of  Religion             247 

Freedom  of  Speech  and  of  the  Press 248 

Right  of  Petition 250 

Right  of  the  People  to  keep  and  bear  Arms   ....  250 

Quartering  Soldiers  on  Citizens 251 

Search  Warrants 252 

Reserved  Rights 253 

Powers  not  delegated  reserved 254 

Slavery 255 

Citizenship 255 

Privileges  and  Immunities           ......  256 

The  Right  to  Vote            .         . 258 

Conclusion 259 

APPENDIX           ....:.::.  263 


(UN  I  VSR  SIT  7) 


CONSTITUTION 


UNITED  STATES  OF  AMEEICA. 


We,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  Union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America. 

ARTICLE  I. 
Section  1. — 1.  All    legislative  powers  herein    granted 
shall  be  vested  in  a  Congress  of  the  United  States,  which 
*  shall  consist  of  a  Senate  and  House  of  Representatives. 
Section  2. — 1.  The  House  of  Representatives  shall  be 
composed  of  members    chosen  every  second  year   by  the 
people  of  the  several  states,  and  the  electors  in  each  state 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  state  legislature. 

2  13 


14  CONSTITUTION    OF    THE    UNITED    STATES. 

2.  No  person  shall  be  a  Representative  who  shall  nol 
have  attained   to   the  age  of  twenty-five  years,  and  been 

—seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  state  in  which 
he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall 

—•be  determined  by  adding  to  the  whole  number  of  free  per- 
sons, including  those  bound  to  service  for  a  term  of  years, 
and  excluding  Indians  not  taxed,  three-fifths  of  all  other 
persons.  The  actual  enumeration  shall  be  made  within 
three  years  after  the  first  meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand,  but  each  state  shall  have  at  least  one 
Representative )  and,  until  such  enumeration  shall  be  made, 
the  state  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York  six,  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland 
six,  Virginia  ten,  North  Carolina  five,  South  Carolina- five, 
and  Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  state,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

—    5.  The    House   of    Representatives   shall    choose    their 


CONSTITUTION    OF   THE    UNITED    STATES.  15 

Speaker  and  other  officers ;  and  shall  have  the  sole  power 
of  impeachment. 

Section  3. — 1.  The  Senate  of  .the  United  States  shall 
be  composed  of  two  Senators  from  each  state,  chosen  by  the 
legislature  thereof,  for  six  years;  and  each  Senator  shall 
have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  conse- 
quence of  the  first  election,  they  shall  be  divided,  as  equally 
is  may  be,  into  three  classes.  The  seats  of  the  Senators 
of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year;  of  the  second  class,  at  the  expiration  of  the 
fourth  year ;  and  of  the  third  class,  at  the  expiration  of  the 
sixth  year;  so  that  one-third  may  be  chosen  every  second 
year;  and  if  vacancies  happen  by  resignation,  or  other- 
wise, during  the  recess  of  the  legislature  of  any  state,  the 
executive  thereof  may  make  temporary  appointments  until 
the  next  meeting  of  the  legislature,  which  shall  then  fill 
such  vacancies. 

3.  No  person  shall  be  a  Senator  who'  shall  not  have? 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  state  for  which  he  shall  be 
chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote,  unless 
they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also 
a  President  pro  tempore,  in  the  absence  of  the  Vice-Presi- 


16  CONSTITUTION    OF   THE   UNITED    STATES. 

dent,  or  when  he  shall  exercise  the  office  of  President  of  the 
United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  im- 
peachments. When  sitting  for  that  purpose,  they  shall  be 
on  oath  or  affirmation.     When  the  President  of  the  United 

-  States  is  tried,  the  Chief  Justice  shall  preside ;  and  no  per- 
son shall  be  convicted  without  the  concurrence  of  two-thirds 
of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 
the  United  States )  but  the  party  convicted  shall,  neverthe- 
less, be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law. 

Section  4. — 1.  The  times,  places,  and  manner,  of  hold- 
ing elections  for  Senators  and  Representatives,  shall  be 
.  prescribed  in  each  state  by  the  legislature  thereof :  but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such  regu- 
lations, except  as  to  the  places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day. 

Section  5. — 1.  Each  House  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  members, 
and  a  majority  of  each  shall  constitute  a  quorum  to  do 
business;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 


CONSTITUTION    OF    THE    UNITED    STATES.  17 

absent  members,  iu  such  manner,  and  under  such  penalties, 
as  each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  procecd- 
+-  iugs,  punish  its  members  for  disorderly  behavior,  and,  with 

the  concurrence  of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings, 
and,  from  time  to  time,  publish  the  same,  excepting  such 
parts  as  may,  in  their  judgment,  require  secrecy;  and  the 

^yeas  and  nays  of  the  members  of  either  House,  on  any 
question,  shall,  at  the  desire  of  one-fifth  of  those  present, 
be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

Section  6. — 1.  The  Senators  and  Representatives  shall 
receive  a  compensation  for  their  services,  to  be  ascertained 
— by  law,  and  paid  out  of  the  treasury  of  the  United  States. 
They  shall,  in  all  cases,  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attend- 
4  ance  at  the  session  of  their  respective  Houses,  and  in  going 
to,  and  returning  from,  the  same ;  and  for  any  speech  or 
debate  in  either  House,  they  shall  not  be  questioned  in  any 
other  place. 

2.  No  Senator  or  Representative  shall,  during  the  time 

for  which  he  was  elected,  be  appointed  to  any  civil  office 

-f  under  the  authority  of  the  United  States,  which  shall  have 

been  created,  or  the  emoluments  whereof  shall  have  been 

2*  B 


18  CONSTITUTION    OF   THE    UNITED    STATES. 

increased  during  such  time;   and  no  person,  holding  any 
-office  under  the  United  States,  shall  be  a  member  of  either 
House  during  his  continuance  in  office. 

Section  7. — 1.  All  bills  for  raising  revenue  shall  origi- 
nate in  the  House  of  Representatives ;  but  the  Senate  may 
propose  or  concur  with  amendments  as  on  other  bills. 

2.  Every  bill,  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States; 
if  he  approve,  he  shall  sign  it,  but  if  not,  he  shall  return 
it,  with  his  objections,  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such  recon- 
sideration, two-thirds  of  that  House  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered, 
and,  if  approved  by  two-thirds  of  that  House,  it  shall 
become  a  law.  But  in  all  such  cases  the  votes  of  both 
Houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjournment,  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 


CONSTITUTION    OF    THE    UNITED    STATES,  10 

necessary  (except  on  a  question  of  adjournment),  shall  be 
presented  to  the  President  of  the  United  States;  and 
before  the  same  shall  take  effect,  shall  be  approved  by  him, 
or,  being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 
<  Section  8. — The  Congress  shall  have  power 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises, 

to  pay  the  debts,  and  provide  for  the  common  defence  and 

general  welfare,  of  the  United  States ;  but  all  duties,  im^ 

~  posts,  and  excises,  shall  be  uniform  throughout  the  United 

States  : 

-  2.  To  borrow  money  on  the  credit  of  the  United  States  : 

-  3.  To  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes : 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uni- 

-  form  laws  on  the  subject  of  bankruptcies,  throughout  the 
United  States : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of 
r  foreign  coin,  and  fix  the  standard  of  weights  and  measures : 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States  : 

7.  To  establish  post-offices  and  post- roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts, 
I  by  securing,  for  limited  times,  to  authors  and  inventors,  the 

exclusive  right  to  their  respective  writings  and  discoveries : 
-    9.  To  constitute  tribunals  inferior  to  the  Supreme  Court : 


20  CONSTITUTION    OF    THE    UNITED    STATES. 

10.  To  define  and  punish  piracies  and  felonies,  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water : 

12.  To  raise  and  support  armies ;  but  no  appropriation 
^  of  money  to  that  use  shall  be  for  a  longer  term  than  two 

years  : 

13.  To  provide  and  maintain  a  navy: 

14.  To  make  rules  for  the  government  and  regulation  of 
-  the  land  and  naval  forces  : 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions : 

16.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States,  reserving  to 
the  states  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia,  according  to  the  dis- 
cipline prescribed  by  Congress : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatso- 
ever, over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  cession  of  particular  states,  and  the  acceptance 

r-  of  Congress,  become  the  seat  of  the  government  of  the 
United  States,  and  to  exercise  like  authority  over  all  places, 
purchased  by  the  consent  of  the  legislature  of  the  state  in 
which  the  same  shall  be,  for  the  erection  of  forts,  maga- 
zines, arsenals,  dock-yards,  and  other  needful  buildings : — 
And 


CONSTITUTION    OF    THE    UNITED    STATES.  21 

18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  department  or 
officer  thereof. 

Section  9. — 1.  The  migration  or  importation  of  such 
persons,  as  any  of  the  states,  now  existing,  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  one  thousand  eight  hundred  and  eight ; 
but  a  tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  hot 
be  suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be 


4.  No  capitation,  or  other  direct  tax,  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  state.     No  preference  shall  be  given  by  any  regulation 

~of  commerce  or  revenue  to  the  ports  of  one  state  over  those 
of  another;  nor  shall  vessels  bound  to,  or  from,  one  state, 
be  obliged  to  enter,  clear,  or  pay  duties,  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in 
consequence  of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. 


22  CONSTITUTION    OF    THE    UNITED    STATES; 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States ;  and  no  person,  holding  any  office  of  profit  or  trust 
under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Section  10. — 1.  No  state  shall  enter  into  any  treaty, 
alliance,  or  confederation ;  grant  letters  of  marque  and  re- 
prisal; coin  money;  emit  bills  of  credit;  make  anything 
+  but  gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility. 

2.  No  state  shall,  without  the  consent  of  the  Congress, 
Jay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws;  and  the  net  produce  of  all  duties  and  imposts, 
laid  by  any  state  on  imports  or  exports,  shall  be  for  the  use 
^.rof  the  treasury  of  the  United  States;  and  all  such  laws  shall 
•be  subject  to  the  revision  and  control  of  the  Congress.  No 
state  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops,  or  ships  of  war,  in  time  of  peace, 
.enter  into  any  agreement  or  compact  with  another  state,  or 
with  a  foreign  power,  or  engage  in  war,  unless  actually 
invaded,  or  in  such  imminent  danger  as  will  not  admit  of 
delay. 

ARTICLE  II. 

Section  1. — 1.  The  Executive  power  shall  be  vested  in 

a.  President  of  the  United  States  of  America.     He  shall 

-  hold  his  office  during  the  term  of  four  years,  and  together 


CONSTITUTION    OF    THE    UNITED    STATES.  23 

with   the  Vice-President,  chosen   for   the   same    term,  be 
elected  as  follows : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  a  number. of  Electors,  equal  to  the 
whole  number  of  Senators  and  Representatives,  to  which  the 
state  may  be  entitled  in  the  Congress  j  but  no  Senator  or 
Representative,  or  person  holding  an  office  of  trust  or  profit, 
under  the  United  States,  shall  be  appointed  an  Elector. 

3.  The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  two  persons,  of  whom  one,  at  least,  shall 
not  be  an  inhabitant  of  the  same  state  with  themselves.  And 
they  shall  make  a  list  of  all  the  persons  voted  for,  and  of 
the  number  of  votes  for  each ;  which  list  they  shall  sign 
and  certify,  and  transmit,  sealed,  to  the  seat  of  the  Govern- 
ment of  the  United  States,  directed  to  the  President  of  the 
Senate.  The  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then.be  counted.  The  person 
having  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  Elect- 
ors appointed ;  and  if  there  be  more  than  one,  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the 
House  of  Representatives  shall  immediately  choose,  by  ballot, 
one  of  them  for  President;  and  if  no  person  have  a  majority, 
then,  from  the  five  highest. on  the  list,  the  said  House  shall, 
in  like  manner,  choose  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  states,  the  represen- 
tation from  each  state  having  one  vote;  a  quorum  for  this 


24  CONSTITUTION    OF   THE    UNITED    STATES. 

purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes 
of  the  Electors  shall  be  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate 
shall  choose  from  them,  by  ballot,  the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the 
Electors,  and  the  day  on  which  they  shall  give  their  votes ; 
which  day  shall  be  the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President; 
neither  shall  any  person  be  eligible  to  that  office,  who  shall 
not  have  attained  to  the  age  of  thirty-five  years,  and  been 
fourteen  years  a  resident  within  the  United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-President,  and  the  Congress  may  by  law  provide  for  the 
case  of  removal,  death,  resignation,  or  inability,  both  of  the 
President  and  Vice-President,  declaring  what  officer  shall 
then  act  as  President,  and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his 
services,  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  the  period  for  which  he  shall  have 


CONSTITUTION    OF    THE    UNITED    STATES.  25 

been  elected,  and  he  shall  not  receive,  within  that  period, 
any  other  emolument  from  the  United  States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall, 
take  the  following  oath  or  affirmation  : 

9.  "  I  do  solemnly  swear  (or  affirm),  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and! 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

Section  2. — 1.  The  President  shall  be  Commander-in- 
Chief  of  the  army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  states,  when  called  into  the  actual 
service  of  the  United  States;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments  upon  any  subject  relating  to  the  duties  of  their 
respective  offices,  and  he  shall  have  power  to  grant  reprieves, 
and  pardons  for  offences  against  the  United  States,  except 
in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and! 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds, 
of  the  Senators  present  concur;  and  he  shall  nominate,  and,, 
by  and  with  the  advice  and  consent  of  the  Senate,  shall! 
appoint  ambassadors,  other  public  ministers,  and  consuls,, 
judges  of  the  Supreme  Court,  and  all  other  officers  of  the- 
United  States  whose  appointments  are  not  herein  otherwise' 
provided  for,  and  which  shall  be  established  by  law :  but 
the  Congress  may  by  law  vest  the  appointment  of  such 
inferior  officers,  as  they  think  proper,  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  departments 
3 


^6  CONSTITUTION    OF    THE   UNITED    STATES. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  their  next 
session. 

Section  3. — 1.  He  shall,  from  time  to  time,  give  to  the 
Congress  information  of  the  state  of  the  Union,  and  recom- 
mend to  their  consideration  such  measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary  occa- 
sions, convene  both  Houses,  or  either  of  them,  and  in  case 
of  disagreement  between  them,  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper;  he  shall  receive  ambassadors  and  other  public 
ministers;  he  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

Section  4. — 1.  The  President,  Vice-President,  and  all 
civil  officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason, 
bribery,  or  other  high  crimes  and  misdemeanors. 

article  hi. 
Section  1. — 1.  The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may,  from  time  to  time,  ordain  and 
establish.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compensa- 
tion which  shall  not  be  diminished  during  their  continuance 
in  office. 


CONSTITUTION    OF    THE    UNITED    STATES.  27 

Section  2. — 1.  The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority ;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls ;  to  all 
cases  of  admiralty  and  maritime  jurisdiction ;  to  controversies 
to  which  the  United  States  shall  be  a  party;  to  controver- 
sies between  two  or  more  states,  between  a  state  and 
citizens  of  another  state,  between  citizens  of  different 
states,  between  citizens  of  the  same  state  claiming  lands 
ander  grants  of  different  states,  and  between  a  state,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  state  shall  be  a  party, 
the  Supreme  Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall 

-have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions  and  under  such  regulations  as  the  Congress 
shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury;  and  such  trial  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been  committed;  but  when 
not  committed  within  any  state  the  trial  shall  be  at  such 
place  or  places  as  the  Congress  may  by  law  have  directed. 

Section  3. — 1.  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort.  No  person 
shall  be  convicted  of  treason  unless  on  the  testimony  of  two 


28  CONSTITUTION    OF    THE    UNITED    STATES. 

witnesses  to  the  same  overt  act,  or  on  confession  in  open 
court. 

2.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture,  except  during  the  life  of 

the  person  attainted. 

-    I 

ARTICLE  IV. 

Section  1. — 1.  Full  faith  and  credit  shall  be  given  in 

each  state  to  the  public  acts,  records,  and  judicial  proceedings 

-f.  of  every  other  state.      And  the  Congress  may,  by  general 

laws,  prescribe  the  manner  in  which  such  acts,  records,  and 

proceedings  shall  be  proved,  and  the  effect  thereof. 

Section  2. — 1.  The  citizens  of  each  state  shall  be  enti- 
■  tied   to  all   privileges    and   immunities  of  citizens  in   the 
several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 

-  another  state,  shall,  on  demand  of  the  executive  authority 
of  the  state  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,  under 
the   laws   thereof,   escaping  into  another,   shall,  in   conse- 
nt quence  of  any  law  or  regulation  therein,  be  discharged  from 

such  service  or  labor,  but  shall  be  delivered  up  on  claim  of 
the  party  to  whom  such  service  or  labor  may  be  due. 

Section  3. — 1.  New  states  may  be  admitted  by  the 
Congress  into  this  Union ,  but  no  new  state  shall  be  formed 


CONSTITUTION   OF   THE   UNITED   STATES.  29 

or  erected  within  the  jurisdiction  of  any  other  state;  nor 
-f  any  state  be  formed  by  the  junction  of  two  or  more  states, 
or  parts  of  states,  without  the  consent  of  the  legislatures  of 
the  states  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States;  and  nothing 
in  this  (V.stitution  shall  be  so  construed  as  to  prejudice 
any  claim?  of  the  United  States,  or  of  any  particular  state. 
Sectio/  i. — 1.  The  United  States  shall  guarantee  to  every 
state  in  this  Union  a  republican  form  of  government,  and 
—  shall  protect  each  of  them  against  invasion;  and  on  applica- 
tion of  the  legislature,  or  of  the  executive  (when  the  legis- 
lature cannot  be  convened),  against  domestic  violence. 

ARTICLE  V. 

1.  The  Congress,  whenever  two-thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  legislatures  of  two- 
thirds  of  the  several  states,  shall  call  a  convention  for 
proposing  amendments,  which,  in  either  case,  shall  be  valid, 
_to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  states,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  Congress  :  provided  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight,  shall,  in  any  manner,  affect  the  first  and  fourth 
3* 


30  CONSTITUTION    OF    THE    UNITED    STATES. 

clauses  in  the  ninth  section  of  the  first  Article ;  and  that 
no  state,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate. 

ARTICLE  VI. 

1.  All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 
the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. 

3.  The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  state  legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States 
and  of  the  several  states,  shall  be  bound,  by  oath  or  affirma- 
tion, to  support  this  Constitution ;  but  no  religious  test  shall 
ever  be  required  as  a  qualification  to  any  office  or  public 
trust  under  the  United  States. 

ARTICLE  VII. 
1.  The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  states  so  ratifying  the  same. 


CONSTITUTION    OF   THE    UNITED    STATES.  31 


y^^    0?  THE 

JVERSIT' 

AMENDMENTS  TO  THE  CONSTITUTION. 


^ 


ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment 

of  religion,  or  prohibiting  the  free    exercise  thereof;    or 

_  abridging  the  freedom  of  speech,  or  of  the  press ;  or  the 

right  of  the  people  peaceably  to  assemble,  and  to  petition 

the  government  for  a  redress  of  grievances. 

ARTICLE  II. 
A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

ARTICLE  III. 
No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner ;  nor,  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law 

ARTICLE  IV. 
The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 


32  CONSTITUTION    OF    THE    UNITED    STATES. 

and  seizures,  shall  not  be  violated  ;  and  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 
No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous,  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service,  in  time  of 
war,  or  public  danger;  nor  shall  any  person  be  subject,  for 
the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or  limb; 
nor  shall  be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

ARTICLE  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  state  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained 
by  law ;  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in 
his  favor;   and   to  have  the  assistance  of  counsel  for  his 

defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy 


CONSTITUTION    OF    THE    UNITED    STATES.  33 

shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved ;  and  no  fact,  tried  by  a  jury,  shall  be  other- 
wise re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 
Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights 

shall  not  be  construed  to  deny  or  disparage  others  retained 

by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people. 

ARTICLE  XL 

The  judicial  power  of  the   United  States  shall  not  be 

construed  to  extend  to  any  suit  in  law  or  equity,  commenced 

-  or  prosecuted  against  one  of  the  United  States  by  citizens 

of  another  state,  or  by  citizens  or  subjects  of  any  foreign 

state. 

ARTICLE  XII. 

1.  The  Electors  shall  meet  in  their  respective  states,  and 

vote  by  ballot  for  President  and  Vice-President,  one  of 

whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  state 

with  themselves ;  they  shall  name  in  their  ballots  the  person 

C 


34  CONSTITUTION    OF    THE    UNITED    STATES. 

voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President;  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign,  and  certify,  and  transmit, 
sealed,  to  the  seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate ;  the  President  of 
the  Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted ;  the  person  having  the  greatest  num- 
-  ber  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors 
appointed;  and  if  no  person  have  such  a  majority,  then, 
from  the  persons  having  the  highest  numbers,  not  exceed- 
ing three,  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not 
choose  a  President,  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President,  as 
in  case  of  the  death,  or  other  constitutional  disability,  of 
the  President. 

2.  The  person  having  the  greatest  number  of  votes  as 


CONSTITUTION    OF   THE    UNITED    STATES.  35 

Vice-President  shall  be  the  Vice-President,  if  such  numbe? 
be  a  majority  of  the  whole  number  of  Electors  appointed ; 
and  if  no  person  have  a  majority,  then,  from  the  two  highest 
"  numbers  on  the  list,  the  Senate  shall  choose  the  Vice-Pre- 
sident -,  a  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  Senators ;  a  majority  of  the  whole 
number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office 
of  President,  shall  be  eligible  to  that  of  Vice-President  of 
the  United  States. 

ARTICLE  XIII. 

Section  1. — Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime,  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

Section  2. — Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

ARTICLE  XIV. 
Section  1. — All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  state  wherein  they 
reside.  No  state  shall  make  or  enforce  any  law  which 
•  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  state  deprive  any  person  of 
life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws. 


36  CONSTITUTION   OF   THE   UNITED   STATES. 

Section  2. — Representatives  shall  be  apportioned  among 
the  several  states  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  state,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and 
Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  state,  or 
■  the  members  of  the  legislature  thereof,  is  denied  to  any  of 
the  male  inhabitants  of  such  state,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  state. 

Section  3. — No  person  shall  be  a  Senator  or  Represen- 
tative in  Congress,  or  elector  of  President  and  Vice-Presi- 
dent, or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  state,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  state  legislature,  or 
as  an  executive  or  judicial  officer  of  any  state,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may,  by 
a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4. — The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  incurred 


CONSTITUTION   OF   THE   UNITED   STATES.  37 

for  payment  of  pensions  and  bounties  for  services  in  sup- 
pressing insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  state  shall  assume  or 

•  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection, 
or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave;  but  all  such  debts,  obli- 
gations, and  claims  shall  be  held  illegal  and  void. 

Section  5. — The  Congress  shall  have  power  to  enforce,, 

'  by  appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 
Section  I. — The  right  of  citizens  of  the  United  State* 
to  vote  shall  not  be  denied  or  abridged  by  the  United  States 
-  or  by  any  state  on  account  of  race,  color,  or  previous  con- 
dition of  servitude. 

Section  2. — The  Congress  shall  have  power  to  enforce) 
this  article  by  appropriate  legislation. 
4 


AN 


EXPOSITION  OF  THE  CONSTITUTION. 


ITS  ORIGIN. 

The  Union  of  the  Colonies. 

1.  The  impolitic  course  of  Great  Britain  towards 
her  North  American  colonies  led  to  that  corres- 
pondence, and,  finally,  to  that  union  between  them, 
which  has  proved,  in  large  measure,  the  source  of 
their  power  and  prosperity.  Accustomed,  however, 
anterior  to  the  Revolution,  to  a  separate,  inde- 
pendent existence,  each  colony  having  its  distinct 
government,  they  still  maintained  that  separate 
political  existence,  notwithstanding  they  united  their 
counsels  and  resources  for  the  common  defence  and 
general  welfare. 

The  Stamp-act  Congress. 

2.  The  attempt  of  England  to  derive  a  revenue 
from  the  colonies  by  means  of  a  tax  on  stamps,  led  a 

39 


40  AN    EXPOSITION   OF   THE 

majority,  namely,  nine  of  the  colonial  assemblies,  to 
send  delegates  to  a  Congress  which  assembled  at  New 
York,  in  October,  1765,  to  consult  together,  and 
make  a  common  representation  to  implore  relief.  The 
determined  attitude  of  the  colonies  on  this  occasion, 
and  their  resolute  denial  and  resistance  to  the  as- 
sumed right  of  taxation,  induced  Parliament  to  repeal 
the  obnoxious  act. 

3.  But  little  more  than  a  year  elapsed,  however, 
before  the  project  of  taxation  was  again  revived,  and 
early  in  the  year  1767  Parliament  passed  another 
act,  wTith  the  avowed  object  of  deriving  a  revenue 
from  America.  This  measure  re-opened  the  fountain 
of  discontent  and  controversy,  and  led  to  that  resist- 
ance on  the  one  hand,  and  those  attempts  at  coercion 
on  the  other,  which  at  last  resulted  in  open  war,  and 
the  dismemberment  of  the  British  Empire. 

The  Continental  Congress, 

4.  On  the  5th  of  September,  1774,  delegates  from 
all  the  colonies,  except  Georgia,  assembled  at  Phila- 
delphia to  deliberate  upon  the  state  of  public  affairs, 
and  devise  and  recommend  measures  of  relief.  The 
method  of  voting  in  this  Congress  was  by  colonies, 
that  is,  each  colony  had  one  vote.  In  pursuance  of 
their  authority,  they  adopted  resolutions  defining 
their  rights  and  the  foundation  of  them.     They  de- 


CONSTITUTION   OF   THE   UNITED   STATES.  41 

clared  the  several  instances  in  which  those  rights  had 
been  violated.  For  the  redress  of  their  wrongs  they 
entered  into  a  non-importation,  non-consumption, 
and  non-exportation  agreement.  They  prepared  an 
address  to  the  people  of  Great  Britain,  a  memorial 
to  the  inhabitants  of  British  America,  and  a  petition 
to  the  king. 

5.  If  these  measures  should  prove  unsuccessful, 
and  their  grievances  remain  unredressed,  they  recom- 
mended that  another  Congress  should  be  held  on  the 
10th  of  the  following  May.  '  The  British  government 
still  persisting  in  their  system,  a  second  Congress, 
composed  of  delegates  from  twelve  colonies,  accord- 
ingly assembled  at  Philadelphia  in  May,  1775.  In 
the  course  of  the  year  Georgia  united  with  her  sister 
colonies,  and  sent  delegates  to  the  Congress. 

Powers  exercised  by  the  Congress. 

6.  The  second  Continental  Congress  exercised  for 
nearly  six  years,  that  is,  from  their  meeting  until 
the  final  ratification  of  the  Articles  of  Confederation 
on  the  1st  of  March,  1781,  the  powers  of  a  supreme, 
controlling  national  council.  They  declared  the 
colonies  free  and  independent  states,  raised  armies, 
made  treaties,  and  performed  the  highest  acts  of 
sovereign  authority.  They  did  all  this,  without  any 
express   delegation  of  power,  but  with  the  implied 

4* 


42  AN    EXPOSITION   OF   THE 

sanction   of   their   constituents,   who   acquiesced   in, 
and  approved  their  proceedings. 

The  Articles  of  Confederation. 

7.  The  powers  of  Congress  remained  undefined 
until  the  adoption  of  the  Articles  of  Confederation, 
which  then  became  the  rule  of  government.  These 
Articles  were  laid  before  Congress  by  a  committee 
of  their  body  on  the  12th  of  July,  1776  ;  and  after 
being  debated  and  amended  from  time  to  time,  they 
were  finally  agreed  to  on  the  17th  of  November, 
1777,  and  submitted  to  the  legislatures  of  the  states 
for  their  ratification. 

8.  The  state  legislatures,  at  successive  dates, 
authorized  their  delegates  in  Congress  to  ratify 
them ;  but  the  ratifications  were  not  completed  until 
the  1st  of  March,  1781.  Congress  assembled  under 
their  authority  on  the  following  day ;  but  it  was  soon 
discovered  that  the  powers  which  they  now  possessed 
were  totally  inadequate  to  the  purposes  of  an  efficient 
government. 

Powers  confided  to  the  Confederation. 

9.  Each  state  retained  every  power,  right,  and 
jurisdiction  not  expressly  delegated  to  Congress. 
And  the  powers  actually  delegated  were  restricted 
in  their  exercise.    Thus  Congress  could  never  engage 


CONSTITUTION   OV    THE   UNITED   STATES.  43 

in  war,  nor  grant  letters  of  marque  and  reprisal  in 
time  of  peace,  nor  enter  into  any  treaties  or  alii* 
ances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  sums  and  expenses  neces- 
sary for  the  defence  and  welfare  of  the  United 
States  or  any  of  them,  nor  emit  bills,  nor  borrow 
money  on  the  credit  of  the  United  States,  nor  appro- 
priate money,  nor  agree  upon  the  number  of  vessels 
of  war  to  be  built  or  purchased,  or  the  number  of 
land  or  sea  forces  to  be  raised,  nor  appoint  a  com- 
mander-in-chief of  the  army  or  navy,  without  the 
assent  of  nine  states,  each  state  having  one  vote. 

10.  But   even   after   the   assent  of  the  requisite 
number    of    states,     Congress,    having    no    coercive 
authority,    could    not    execute    its    most    important 
measures.       The    concurrence    of    thirteen    distinct  J 
sovereignties   was   necessary  in  order   to  give   them/ 
effect.  ' 

11.  Congress,  for  example,  could  declare  war,  hut 
it  depended  upon  the  states  whether  they  should 
have  an  army  and  navy ;  they  could  make  treaties, 
but  it  equally  depended  upon  the  states  whether 
they  should  be  observed  ;  they  could  contract  debts, 
and  again  it  depended  upon  the  states  whether  they 
should  be  paid. 

I       12.    They   could    lay   and    collect   no    taxes,   the 
states    reserving    this   power  to   themselves.      They 


44  AN   EXPOSITION   OF   THE 

could  only  ascertain  the  sums  necessary  to  be  raised 
for  the  service  of  the  United  States,  and  call  on  the 
several  states  for  their  respective  proportions  thereof. 
Whether  the  several  states  would  respond  to  this  call 
at  all,  or  at  what  time,  or  in  what  manner,  depended 
wholly  upon  themselves. 

13.  Another  great  defect  in  the  Articles  cf  Con- 
federation was  the  want  of  any  power  in  Congress  to 
regulate  foreign  and  domestic  commerce.  This  led 
to  conflicting  and  irritating  regulations  on  the  part 
of  the  several  states,  and  threatened  the  most  serious 
consequences. 

Result  of  the  Confederation. 

14.  In  short,  the  government  of  the  Confederation 
possessed  in  reality  only  a  power  of  recommendation, 
and  hence  the  efficacy  of  its  measures  depended  upon 
their  being  in  harmony  with  the  views,  interests,  and 
convenience  of  the  several  states. 

15.  The  result  was  natural :  the  measures  of  the 
Congress  were  not  executed.  That  body  was  un- 
supplied  with  the  means  to  pay  the  public  debt,  and 
possessed  neither  respect  abroad,  nor  credit  and  con- 
fidence at  home.  "  In  a  word,"  said  Washington, 
"  the  Confederation  appears  to  me  to  be  little  more 
than  a  shadow  without  the  substance ;  and  Congress 
a  nugatory  body,  their  ordinances  being  little 
attended  to." 


CONSTITUTION   OF  THE   UNITED   STATES.  45 


Origin  of  the  Convention  which  framed  the 
Constitution. 

16.  In  this  emergency,  a  Convention  which  had 
assembled  at  Annapolis  in  the  autumn  of  1786,  to 
devise  a  uniform  system  of  commercial  regulations, 
in  consequence  of  imperfect  powers,  and  an  inade- 
quate representation,  forbore  to  consider  that  subject, 
but  instead  thereof  recommended  the  appointment  of 
commissioners  from  all  the  states,  to  devise  such 
additional  provisions  as  should  appear  to  them  neces- 
sary to  render  the  Constitution  of  the  Federal 
Government  adequate  to  the  exigencies  of  the 
Union. 

17.  This  action  of  the  Annapolis  Convention  met 
with  a  favorable  response.  On  the  21st  of  the  fol- 
lowing February,  Congress  formally  recommended  a 
convention  of  delegates,  to  be  appointed  by  the 
several  states,  for  the  sole  and  express  purpose  of 
revising  the  Articles  of  Confederation,  and  reporting 
to  Congress  and  the  several  legislatures  such  altera- 
tions and  provisions  therein,  as  should,  when  agreed 
to  in  Congress  and  confirmed  by  the  states  under 
the  Federal  Constitution,  seem  adequate  to  the 
exigencies  of  the  government  and  the  preservation 
of  the  Union. 


46  AN   EXPOSITION   OF  THE 


The  Meeting  and  Result  of  the  Convention. 

18.  Delegates  were  accordingly  appointed  by  the 
several  state  legislatures,  except  the  legislature  of 
Rhode  Island,  who  assembled  in  convention  at  Phila- 
delphia, in  May,  1787.  This  Convention,  which  was 
composed  of  the  most  distinguished  abilities  of  the 
country,  continued  in  session  nearly  four  months. 

19.  The  Constitution,  or  plan  of  government,  which 
they  framed,  was  finally  adopted  on  the  17th  of 
September,  1787.  It  was  then  laid  before  the  Con- 
gress of  the  Confederation,  together  with  the  opinion 
of  the  Convention  that  it  should  be  submitted  to  a 
convention  of  delegates,  chosen  in  each  state  by  the 
people  thereof,  under  the  recommendation  of  its 
legislature,  for  their  assent  and  ratification.  This 
mode  of  proceeding  was  adopted,  and  the  Constitu- 
tion was  thus  submitted  to  the  people  of  the  several 
states.  They  acted  upon  it,  through  delegates  as- 
sembled in  convention  within  their  respective  states. 
From  these  conventions  the  Constitution  derives  its 
whole  authority.  By  their  assent  and  ratification  it 
became  of  complete  obligation,  and  bound  the  state 
sovereignties. 


CONSTITUTION   OF   THE   UNITED   STATES.  47 

Organization  of  the  Government. 

20.  Eleven  of  the  states,  that  is,  all  but  North 
Carolina  and  Rhode  Island,  having  notified  Congress 
of  their  ratification  of  the  Constitution,  that  body, 
on  the  18th  of  September,  1788,  passed  a  resolution 
appointing  the  first  Wednesday  in  January  following, 
for  the  choice  of  Electors  of  President ;  the  first 
Wednesday  in  February  following,  for  the  assembling 
of  the  Electors  to  vote  for  a  President ;  and  the  first 
Wednesday  in  March  following,  for  the  government, 
under  the  Constitution,  to  go  into  operation. 

21.  Electors  were  accordingly  chosen  in  the  several 
states,  who  met  at  the  designated  time  and  voted  for 
President  and  Vice-President.  George  Washington, 
as  afterwards  appeared  upon  opening  and  counting 
the  votes,  was  unanimously  elected  President,  and 
John  Adams  was  elected  Vice-President.  Senators 
and  Representatives  were  also  duly  chosen  in  the 
several  states,  and  the  First  Congress  assembled  at 
New  York,  then  the  seat  of  government,  on  the  4th 
of  March,  1789,  when  the  Constitution  went  into 
legal  operation. 

22.  A  quorum  of  the  House  of  Representatives, 
however,  wras  not  formed  until  the  first  of  April,  nor 
of  the  Senate  until  the  6th.  Several  months,  too, 
elapsed   before  Congress    could   pass  the  necessary 


48  AN   EXPOSITION   OF   THE 

laws  for  organizing  the  judiciary  and  the  several 
executive  departments.  But,  in  the  course  of  a  year, 
the  machinery,  so  to  speak,  of  the  new  government 
was  adjusted  and  put  in  harmonious  operation.  In 
November,  1789,  North  Carolina,  through  her  con- 
vention, ratified  the  Constitution,  and  Rhode  Island 
followed  her  example  in  May,  1790.  And  thus  the 
original  circle  of  thirteen  states  was  completed. 


CONSTITUTION   OF   THE   UNITED   STATES.  49 


THE  OBJECT  FOR  WHICH  THE  CONSTITUTION  WAS 
ORDAINED. 

Definitions, 

23.  Government  may  be  briefly  defined  as  the 
power  or  authority  which  rules  a  community.  When 
there  is  no  control  upon  the  persons  who  exercise 
this  power  or  authority  but  their  own  will,  the  govern- 
ment is  arbitrary.  On  the  contrary,  when  the 
methods  and  the  limits,  within  which  they  must 
exercise  it,  are  marked  out  and  prescribed,  the 
government  is  constitutional,  no  matter  what  par- 
ticular form  it  may  assume. 

24.  A  constitution,  then,  may  be  defined  as  the 
rule  which  limits  the  action  and  prescribes  the 
powers  and  duties  of  a  government,  and  the  methods 
by  which  those  powers  and  duties  shall  be  adminis- 
tered. 

How  Constitutions  originate. 

25.  It  is  not  necessary  that  a  constitution  should 
be  written  or  exist  in  visible  form.  On  the  contrary, 
the  instances  are  rare,  in  the  history  of  mankind,  of 
a  constitution  being  drawn  up  in  a  formal  manner, 
and  for  the  purpose  of  instituting  a  new  form  of 

6  D 


50  AN    EXPOSITION   OF   THE 

government.  For  the  most  part  constitutions  have 
grown  out  of  successive  modifications  of  pre-existing 
governments. 

26.  An  arbitrary  government,  for  example,  becom- 
ing intolerable,  the  community  rise  and  demand  some 
security  against  its  oppressions.  They  insist  upon  a 
curtailment  of  its  powers,  and  some  provision  for 
their  protection.  Such  curtailment  and  provision 
amount,  in  fact,  to  a  constitution,  however  imperfect 
it  may  be.  As  time  develops  its  defects  further 
changes  take  place,  until,  at  length,  it  becomes,  in 
greater  or  less  measure,  adapted  to  the  wants  and 
situation  of  the  particular  community. 

27.  The  Roman  constitution  came  into  being  in 
this  manner,  and  though  never  existing  in  visible 
form,  yet  the  respective  powers  of  the  senate,  con- 
suls, tribunes,  and  assemblies  of  the  people  were  as 
well  defined  perhaps  by  usage  and  particular  decrees 
as  if  they  had  been  written  upon  parchment  or 
engraven  upon  stone.  The  English  constitution,  too, 
is  the  growth  of  centuries,  and  is  the  combined  pro- 
duct of  custom,  tradition,  judicial  decisions,  royal 
grants,  and  legislative  acts. 

28.  The  Constitution  of  the  United  States,  on  the 
other  hand,  instituted  the  government  itself,  and 
may  be  termed  a  Constitution  of  written  Articles, 
which    set    forth    the    principles    upon    which    the 


CONSTITUTION   OF   THE   UNITED   STATES.  51 

government  shall  be  organized  and  administered,  and 
the  powers  and  duties  of  its  respective  departments. 

For  what  Purpose  the  Constitution  was 
established. 

29.  It  was  ordained  and  established  by  the  people 
of  the  -United  States,  in  order  to  form  a  more  perfect 
Union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  them- 
selves and  their  posterity. 

30.  Such  being  the  purpose,  what  means  have 
been  devised  to  attain  it?  In  the  first  place,  the 
powers  with  which  the  government  is  invested  are 
divided  among  distinct  and  separate  departments, 
each  acting  as  a  control  on  the  others.  These 
departments  are  legislative,  executive,  and  judicial. 
We  shall  consider  them  in  the  order  they  are  pre- 
sented in  the  Constitution  itself. 

31.  It  is  proper  to  observe,  however,  in  this  place, 
that  when  the  Constitution  declares  the  purpose  for 
which  it  was  ordained  and  established,  such  declara- 
tion neither  confers  nor  enlarges  any  power  confided 
to  any  department  of  the  government,  but  is  merely 
explanatory  of  the  objects  for  which  those  powers 
were  conferred,  and  thus  constitutes  an  important 
key  to  their  interpretation. 


52  AN   EXPOSITION   OF  THE 


THE  LEGISLATURE. 

Distribution  of  Legislative  Power. 

32.  All  legislative  powers  granted  by  the  Consti- 
tution are  vested  in  a  Congress  of  the  United  States, 
which  consists  of  a  Senate  and  House  of  Representa- 
tives. 

Importance  of  two  Branches. 

33.  Several  eminent  characters  have  deemed  a 
division  of  legislative  power  between  two  branches, 
each  having  a  negative  on  the  other,  as  unwise  and 
unnecessary.  A  legislature  with  two  branches,  said 
Dr.  Franklin,  is  a  wagon  drawn  by  a  horse  before 
and  a  horse  behind,  in  opposite  directions.  But 
reason  and  experience  have  alike  demonstrated  the 
correctness  of  the  contrary  opinion. 

34.  It  is  now  generally  conceded  that  a  division 
of  legislative  power  is  essential  in  order  to  prevent 
those  errors  and  mistakes  which  a  single  assembly  is 
liable  to  commit  from  haste  or  inattention,  or  those 
impolitic  and  dangerous  acts  of  legislation  into  which 
it  may  be  hurried  by  the  impulses  of  feeling,  by  sur- 
prise, by  intrigue,  by  fervid  eloquence  within  doors, 
or  the  pressure  of  opinion  without. 


CONSTITUTION   OF   THE   UNITED   STATES.  53 

35.  With  two  branches,  it  is  obvious  that  each 
will  act  with  more  caution  and  deliberation,  in  order 
that  its  measures  may  justify  the  approval  of  the 
other.  To  make  this  mutual  check  and  control  more 
effectual,  the  two  branches  ought  to  be  instituted 
upon  different  principles,  so  that  the  same  influences 
which  operate  upon  the  one  shall  be  less  potential 
with  the  other. 

36.  The  framers  of  the  Constitution  of  the  United 
States  were  not  inattentive  to  this  consideration 
when  they  made  the  term  of  office,  the  qualifications, 
and  mode  of  election  for  a  senator  different  from 
what  are  prescribed  for  a  representative.  We  shall 
presently  see  that  in  all  these  particulars  the  two 
houses  of  Congress  are  constituted  differently. 


>       OP  THE         . 

[UNIVERSIT' 


54  AN   EXPOSITION   OF   THE 


THE  HOUSE  OF  REPRESENTATIVES. 

When  and  by  whom  Chosen, 

37.  The  House  of  Representatives  is  composed  of 
members  chosen  evej^.seco.nd_jear  by  the  people  of 
the  several  states,  and  the  electors  in  each  state  must 
have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  state  legislature. 

Dependence  of  the  Representative  upon  the 
Constituent, 

38.  Without  a  dependence  of  the  representative 
upon  the  electors,  without  a  power  on  their  part  to 
call  him  to  account  for  his  conduct,  the  experiment 
of  republican  government  would  be  likely  to  end  in 
an  oligarchy  or  a  despotism.  A  permanent  legislative 
body,  though  they  may,  like  the  Council  of  Venice, 
advance  the  power  of  a  country,  are  a  most  unsafe 
custodian  of  its  liberties. 

39.  Hence  it  has  become  an  axiom  in  republican 
states  that  the  representative  should  be  directly 
responsible  to  the  people,  and  this  responsibility  is 
ensured  by  the  frequency  of  his  election. 


CONSTITUTION   OF   THE   UNITED   STATES.  55 


How  frequently  should  a  Representative  he 
elected  ? 

40.  How  frequent  this  election  should  be,  or  how 
long  should  be  the  duration  of  a  representative's 
term  of  office,  is  a  question  that  does  not  admit  of  an 
exact  solution.  It  may  be  affirmed,  however,  as  a 
general  proposition,  that  it  should  never  be  so  long 
as  to  destroy  his  sense  of  dependence  on  his  constit- 
uents, nor  so  short  as  to  prevent  that  familiarity 
with  the  practical  business  of  legislation,  and  that 
knowledge  of  the  interests  of  his  country  upon  which 
his  usefulness  must  essentially  depend. 

41.  The  framers  of  the  Constitution,  in  establish- 
ing biennial  elections  for  representatives,  were  influ- 
enced, in  part,  by  the  known  attachment  of  the  people 
to  the  principle  of  frequent  elections.  Most  of  the 
states  chose  their  representatives  annually,  Connec- 
ticut and  Rhode  Island  semi-annually,  North  «and 
South  Carolina  biennially,  and  Virginia  alone  sep- 
tennially. 

42.  It  would,  therefore,  have  been  impolitic,  and 
have  heightened  the  opposition  which  the  Constitu- 
tion encountered  wThen  submitted  to  the  people  for 
their  assent  and  ratification,  if  the  term  of  service  in 
the  House  of  Representatives  had  been  fixed  at  a 
longer   period   than  two   years.     Besides,   in  fixing 


56  AN    EXPOSITION   OF   THE 

upon  that  term,  it  was  thought  that  the  inconvenience 
of  a  too  frequent  election  on  the  one  hand,  and  a  too 
long  duration  of  power  on  the  other,  would  be,  in 
great  measure,  guarded  against. 

Qualifications  for  Electors, 

43.  It  will  be  remarked  that  the  electors  of  repre- 
sentatives in  each  state  must  possess  the  same  quali- 
fications as  the  electors  of  the  most  numerous  branch 
of  the  state  legislature.  Originally  the  qualifications 
for  electors  were  different  in  the  different  states ; 
and  if  the  Constitution  had  disregarded  these  dif- 
ferences and  established  a  uniform  qualification  for 
all,  it  would  have  been  likely  to  cause  great  dis- 
satisfaction. But,  the  states  themselves  have  since 
made  great  changes  in  the  qualifications  of  their 
electors,  and  they  now  approach  to  a  nearly  uniform 
standard :  universal  suffrage  prevailing  in  all  or  most 
of  the  states.  Moreover,  by  the  fifteenth  amend- 
ment, which  was  declared  duly  ratified  by  the  requi- 
site number  of  States  on  the  30th  day  of  March, 
1870,  it  is  provided  that  the. right  of  citizens  of  the 
|  United  States  to  vote  shall  not  be  denied  or  abridged 
!  by  the  United  States,  or  by  any  State,  on  account  of 
vj^ace,  color,  or  previous  condition  of  servitude.  So  that 
by  the  terms  in  effect  of  this  amendment  any  restric- 
tion upon  the  elective  franchise  on  these  grounds  is 
forbidden. 


CONSTITUTION   OF   THE   UNITED   STATES.  57 


Qualifications  for  a  Representative. 

44.  No  person  can  be  a  Kepresentative  who  has 
not  attained  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States.  He 
must  also,  wThen  elected,  be  an  inhabitant  of  the 
state  in  which  he  is  chosen. 

45.  Three  qualifications  are  thus  required  on  the 
part  of  a  representative  : 

First,  He  must  have  attained  the  age  of  twenty- 
five. 

Secondly,  He  must  have  been  seven  years  a  citizen 
of  the  United  States.  A  foreigner  is  thus  eligible  to 
the  House  of  Representatives  after  a  citizenship  of 
seven  years  ;  but  he  is  not  a  citizen  until  he  has  been 
naturalized,  and  to  be  naturalized  requires  a  pre- 
vious residence  of  five  years.  So  that  twelve  years 
must  elapse  before  he  is  eligible  as  a  Representative. 

46.  Thirdly,  He  must,  when  elected,  be  an  inha- 
bitant of  the  state  in  which  he  shall  be  chosen  ;  that 
is,  he  must  really  be  a  member  of  the  state,  subject 
to  all  the  requisitions  of  its  laws,  and  entitled  to  all 
the  privileges  and  advantages  which  they  confer. 
By  a  political  fiction,  however,  a  representative  of 
his  country  at  a  foreign  court,  though  residing  abroad, 
is  still  regarded,  as  it  were,  as  being  at  home.  He 
remains  under  the  jurisdiction  and  laws  of  his  own 


58  AN   EXPOSITION   OF   THE 

country,  like  a  sailor  upon  the  high  seas,  and  is  not 
subject  to  the  laws  of  the  country  in  which  he  resides. 
Hence  he  is  not  deemed,  by  his  foreign  residence,  to 
lose  his  character  of  inhabitant  of  the  state  of  which 
he  is  a  citizen,  and  may  be  elected  to  a  seat  in  Con- 
gress. In  addition  to  the  qualifications  thus  specified, 
the  fourteenth  amendment,  which  was  declared  a  part 
of  the  Constitution  on  the  28th  day  of  July,  1868, 
provides  that  no  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  state,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  state  legislature,  or  as  an  executive  or  judicial 
officer  of  any  state,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  The  disability,  however,  created 
by  this  amendment  Congress  may  remove  by  a  vote 
of  two-thirds  of  each  house.* 

47.  The  Constitution  having  fixed  the  qualifica- 
tions for  a  Representative,  the  states  cannot  require 
others.  They  can  neither  add  to,  nor  in  any  manner 
vary  the  qualifications  set  forth  in  the  Constitution 
itself.       They    cannot,    for    example,    require    their 

*  Ohio  and  New  Jersey  withdrew  their  consent  to  this  amend* 
ment  before  its  proclamation. 


CONSTITUTION   OF   THE   UNITED   STATES.  59 

representatives  to  be  freeholders  or  professors  of  any 
particular  religious  belief,  or  inhabitants  of  the  par- 
ticular districts  from  which  they  are  chosen,  in  addi- 
tion to  being  inhabitants  of  the  state,  because  in  this 
instance  the  affirmation  of  certain  qualifications 
obviously  implies  a  negation  of  all  others. 

Apportionment  of  Representatives. 

48.  The  apportionment  of  representatives  among 
the  several  states  was  a  subject  of  great  difficulty. 
It  was  generally  agreed  that  the  apportionment 
should  be  made  according  to  their  respective  num- 
bers; but  how  should  these  numbers  be  determined  ? 
On  the  one  hand  it  was  contended  that  slaves  were 
property,  and  as  representation  was  to  be  based  on 
persons,  they  ought  to  be  excluded  from  the  enumera- 
tion equally  with  all  other  property. 

49.  On  the  other  hand  it  was  urged  that  in  the 
union  of  independent  states,  the  population  of  each 
should  constitute  the  basis  of  its  representation  in  the 
common  legislature,  without  reference  to  its  condition. 
Slaves,  it  was  said,  were  the  laboring,  producing 
population  of  many  of  the  states,  and  constituted  a 
large  portion  of  their  aggregate  numbers.  Hence,  it 
was  contended,  that  it  would  be  unjust  to  these  states 
to  exclude  the  slaves  from  the  census. 


60  AN   EXPOSITION   OF  THE 

Slaves  regarded  in  the  Apportionment. 

50.  After  an  exciting  controversy  the  subject  was 
compromised  as  follows:  The  slaveholding  states 
were  allowed  a  representation  for  three-fifths  of  their 
slaves  ;  but  it  was  agreed  at  the  same  time  that  they 
should  pay  direct  taxes  in  the  same  proportion.  Thus 
the  increase  in  the  number  of  their  representatives 
was  accompanied  by  a  corresponding  increase  in  the 
amount  of  their  direct  taxes. 

51.  That  is,  representatives  and  direct  taxes  are 
apportioned  among  the  several  states,  according  to 
their  respective  numbers,  which  are  determined  by 
adding  to  the  whole  number  of  free  persons,  includ- 
ing those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other 
persons,  meaning  thereby  slaves.  As,  however,  slavery 
was  abolished  by  the  thirteenth  amendment,  which  was 
declared  a  part  of  the  Constitution  of  the  United 
States  on  the  18th  day  of  December,  a.  d.  1865,  it 
became  necessary  to  apportion  representatives  among 
the  several  states  upon  a  basis  different  from  that  pro- 
vided in  the  original  Constitution.  Accordingly,  by 
the  terms  of  the  fourteenth  amendment,  it  is  declared 
as  follows:  Representatives  shall  be  apportioned 
among  the  several  states  according  to  their  respectivo 
numbers,  counting  the  whole  number  of  persons  in 
each  state,  excluding  Indians  not  taxed.     But  when 


CONSTITUTION   OF  THE   UNITED   STATES.  61 

the  right  to  vote  at  any  election  for  the  choice  of 
electors  for  President  and  Vice-President  of  the 
United  States,  Representatives  in  Congress,  the  exec- 
utive and  judicial  officers  of  a  state,  or  the  members 
of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  state,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  state. 

Limit  as  to  number  of  Representatives. 

52.  The  number  of  representatives  is  not  to  exceed 
one  for  every  thirty  thousand ;  but  each  state  is 
entitled  to  at  least  one. 

A  Census  required  to  be  taken. 

53.  To  ascertain  the  population  of  the  respective 
states,  and  apportion  representatives  among  them 
according  to  their  relative  increase  of  numbers,  an 
enumeration  is  required  to  be  made,  every  ten  years, 
in  such  manner  as  Congress  shall  by  law  direct. 

54.  The  first  enumeration  was  made  in  1790,  and 
has  since  been  made  once  in  every  ten  years,  as  the 
Constitution  requires. 

6 


62  AN    EXPOSITION   OF   THE 


Mode  of  Apportionment. 

55.  Though,  at  first  view,  it  would  seem  to  be  a 
very  easy  matter  to  apportion  representatives  among 
the  states,  according  to  their  respective  numbers,  it 
has  nevertheless  been  a  subject  of  much  difficulty. 
In  point  of  fact,  it  has  been  found  impracticable  to 
apportion  representatives  exactly  according  to  num- 
bers. Whatever  common  ratio  or  divisor  is  fixed 
upon,  there  will  be  resulting  fractions.  If  these 
fractions  are  less  than  thirty  thousand  they  must  be 
disregarded,  because,  by  the  Constitution,  more 
representatives  than  one  for  every  thirty  thousand 
are  not  allowed.  But  if  the  fractions  exceed  thirty 
thousand  what  is  to  be  done  with  them  ? 

56.  The  rule  adopted  by  Congress,  at  one  time, 
was  this :  the  representative  population  of  each  state 
was  divided  by  a  common  divisor,  and,  in  addition 
to  the  number  of  members  resulting  from  such 
division,  a  member  was  allowed  to  each  state  whose 
fraction  exceeded  a  moiety  of  the  division. 

57.  By  Act  of  Congress  (Feb.  2,  1872,)  it  is  provided 
that  after  the  3d  day  of  March,  1873,  the  House  of 
Representatives  shall  be  composed  of  two  hundred  and 
eighty-three  members.  These  members  are  appor- 
tioned among  the  several  states  according  to  the  ninth 
census,  and  the  number  each  state  is  entitled  to  is 
specifically  stated  in  the  act.     If  a  new  state  is  ad- 


CONSTITUTION    OF   THE   UNITED   STATES.  63 

mitted  into  the  Union  subsequent  to  such  apportion- 
ment, the  representation  or  representatives  of  such 
new  state  are  additional  to  the  original  number  of  two 
hundred  and  eighty-three.* 

58    In  addition  to  the  representation  of  the  statesA 
Congress  allow  each  o£  the  organized  territories  of  ^ 
the  United  States  to  send  a  delegate  to  the  House    / 
of  Representatives,  who  has  the  privilege  of  debating/ 
but  not  of  voting.  •      / 

Vacancies. 

59.  To  conclude  this  branch  of  our  subject  we 
have  only  to  add,  that  when  vacancies  happen  in  the 
representation  from  any  state,  the  executive  autho- 
rity thereof  is  required  to  issue  writs  of  election  to 

*  By  the  act  of  May  23,  1850,  the  number  of  representatives 
of  which  the  House  was  to  be  composed  was  fixed  at  233.  The 
aggregate  representative  population  of  the  United  States,  ascer- 
tained by  adding  to  the  whole  number  of  free  persons  in  all  the 
states,  including  those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other  persons, 
was  divided  by  233,  and  the  quotient,  rejecting  fractions,  became 
the  ratio  of  representatives  among  the  several  states.  The  repre- 
sentative population  of  each  state,  ascertained  in  the  same  man- 
ner, being  now  divided  by  this  common  ratio,  gave  the  number 
of  representatives  apportioned  to  each.  But  in  this  process  there 
had  been  a  loss  in  the  number  of  members  caused  by  the  frac- 
tions; it  fell  short  of  233.  This  loss  was  compensated  for  by 
assigning  to  so  many  states  having  the  largest  fractions  as  might 
be  necessary  to  make  the  whole  number  of  representatives  233, 
one  additional  member  each  for  its  fraction 


64  AN   EXPOSITION   OF   THE 

fill  them  ;  and  also,  that  the  house  of  representatives 
choose  their  own  speaker  and  other  officers,  and  have 
the  sole  power  of  impeachment.  It  may  also  be 
observed,  that  it  is  not  necessary  for  the  executive 
of  a  state  to  be  first  informed  by  the  house  itself 
that  a  vacancy  exists  before  issuing  a  writ  of  election ; 
it  is  sufficient  if  he  has  received  the  resignation  of  a 
member. 


CONSTITUTION   OF   THE   UNITED   STATES.  65 


THE  SENATE. 

Importance  of  a  Senate. 

60.  Mr.  Burke  has  remarked  that  a  monarchy 
may  exist  without  a  senate ;  but  that  it  seems  to  be 
in  the  very  essence  of  a  republican  government. 
Obviously  this  was  the  opinion  of  the  framers  of  the 
Constitution  of  the  United  States.  They  constituted 
a  Senate,  and  constituted  it  in  such  manner  as  to  give 
it,  in  greater  or  less  measure,  a  steady  control  in  the 
action  of  the  government. 

61.  By  the  mode  of  their  election,  the  members  of 
the  Senate  are  likely  to  be  men  of  known  ability  and 
established  character.  By  their  term  of  office,  they 
are  in  a  situation  to  disregard  those  gusts  of  passion 
or  delusion  that  frequently  sweep  over  all  communi- 
ties, and  can  await  in  security  the  return  of  reason, 
of  justice,  and  moderation. 

How  constituted. 

62.    The    Constitution    provides  that  the   Senate 
shall  be  composed  of  two  senators  from  each  state, 
chosen  by  the  legislature  thereof  for  six  years,  and 
that  each  senator  shall  have  one  vote. 
6*  E 


66  AN   EXPOSITION   OF   THE 

63.  This  equality  of  representation  in  the  Senate, 
without  reference  to  the  disproportion  in  the  territory, 
wealth,  or  population  of  the  several  states,  was  the 
result  of  compromise  and  mutual  concession.  The 
small  states  demanded  it  as  a  means  of  protection 
against  the  large,  and  as  being  in  accordance  with 
the  federal  principle  :  the  proportional  representation 
in  the  House  being  conformable  to  the  national 
principle,  and  thus  securing  the  large  states  against 
the  small. 

Mode  of  Election. 

64.  The  members  of  the  Senate  are  chosen  by  the 
legislatures  of  the  respective  states,  and  generally  by 
a  joint  vote,  that  is,  both  branches  of  the  legislature 
unite  and  form  one  assembly,  and  the  majority  elect. 
The  Senate,  however,  in  a  recent  case,  decided  that, 
in  order  to  the  validity  of  such  an  election,  both 
branches,  acting  separately,  must  first  have  voted  to 
meet  as  a  joint  body,  and  have  actually  met  accord- 
ingly. In  some  of  the  states  each  branch  gives  a 
separate  and  independent  vote,  and  a  majority  of 
each  must  concur  in  the  choice  of  the  same  candidate 
or  there  is  no  election.  This  is  called  a  concurrent 
vote.  By  the  act  of  July  25,  1866,  Congress  pre- 
scribed the  following  mode  of  electing  senators  : — 
The  legislature  of  each  state  which  shall  be  chosen 


CONSTITUTION   OF   THE   UNITED   STATES.  67 

next  preceding  the  expiration  of  the  time  for  which 
any  Senator  was  elected  to  represent  said  state  in 
Congress,  shall,  on  the  second  Tuesday  after  the 
meeting  and  organization  thereof,  proceed  to  elect  a 
Senator  in  Congress,  in  the  place  of  such  Senator  so 
going  out  of  office,  in  the  following  manner:  Each 
house  shall  openly,  by  a  viva  voce  of  each  member 
present,  name  one  person  for  Senator  in  Congress 
from  said  state,  and  the  name  of  the  person  so  voted 
for  who  shall  have  a  majority  of  the  whole  number  of 
votes  cast  in  each  house  shall  be  entered  on  the  journal 
of  each  house,  by  the  clerk  or  secretary  thereof ;  but 
if  either  house  shall  fail  to  give  such  majority  to  any 
person  on  said  day,  that  fact  shall  be  entered  on  the 
journal.  At  twelve  o'clock,  meridian,  of  the  day  fol- 
lowing that  on  which  proceedings  are  required  to  take 
place,  as  aforesaid,  the  members  of  the  two  houses  shall 
convene  in  joint  assembly,  and  the  journal  of  each  house 
shall  then  be  read,  and  if  the  same  person  shall  have 
received  a  majority  of  all  the  votes  in  each  house,  such 
person  shall  be  duly  declared  elected  Senator  to  repre- 
sent said  state  in  the  Congress  of  the  United  States ; 
but  if  the  same  person  shall  not  have  received  a  major- 
ity of  the  votes  in  each  house,  or  if  either  house  shall 
have  failed  to  take  proceedings  as  required  by  this 
act,  the  joint  assembly  shall  then  proceed  to  choose, 
by  a  viva  voce  vote  of  each  member  present,  a  person 
for  the  purpose  aforesaid;  and  the  person  having  a, 
majority  of  all  the  votes  of  the  said  joint  assembly, 


68  AN    EXPOSITION   OF   THE 

a  majority  of  all  the  members  of  both  houses  being 
present  and  voting,  shall  be  declared  duly  elected ; 
and  in.  case  no  person  shall  receive  such  majority  on 
the  first  day,  the  joint  assembly  shall  meet  at  twelve 
o'clock  meridian  of  each  succeeding  day,  during  the 
session  of  the  legislature,  and  take  at  least  one  vote 
until  a  Senator  shall  be  elected. 

Elections  to  fill  Vacancies. 

Whenever,  on  the  meeting  of  the  legislature  of  any 
state,  a  vacancy  shall  exist  in  the  representation  of  such 
state  in  the  Senate  of  the  United  States,  said  legisla- 
ture shall  proceed,  on  the  second  Tuesday  after  the 
commencement  and  organization  of  its  session,  to  elect 
a  person  to  fill  such  vacancy,  in  the  manner  herein- 
before provided  for  the  election  of  a  Senator  for  a 
full  term;  and  if  a  vacancy  shall  happen  during  the 
session  of  the  legislature,  then,  on  the  second  Tuesday 
after  the  legislature  shall  have  been  organized  and 
shall  have  notice  of  such  vacancy. 

Certificates  of  Election. 

It  shall  be  the  duty  of  the  governor  of  the  state  from 
which  any  Senator  shall  have  been  chosen  as  afore- 
said, to  certify  his  election,  under  the  seal  of  the  state, 
to  the  President  of  the  United  States;  which  certifi- 
cate shall  be  countersigned  by  the  secretary  of  state 
of  the  state. 


CONSTITUTION   OF   THE   UNITED   STATES.  69 


Term  of  Office. 

65.  The  Senators  are  chosen  for  six  years;  but, 
as  if  to  obviate  any  objection  that  might  be  urged 
against  so  long  a  term,  the  Constitution  has  provided 
that  immediately  after  the  Senate  should  be  as- 
sembled, in  consequence  of  the  first  election,  they 
should  be  divided,  as  equally  as  might  be,  into  three 
classes  :  the  seats  of  the  Senators  of  the  first  class 
to  be  vacated  at  the  expiration  of  the  second  year ; 
of  the  second  class,  at  the  expiration  of  the  fourth 
year ;  and  of  the  third  class,  at  the  expiration  of  the 
sixth  year.  Thus  one-third  are  chosen  every  second 
year. 

66.  By  this  arrangement,  while  fresh  members  are 
introduced  into  the  Senate  biennially,  there  is  a 
much  larger  number  who  have  acquired  experience 
and  familiarity  with  the  public  business.  As  new 
states  are  admitted  into  the  Union,  and  additional 
members  are  thus  brought  into  the  Senate,  they  are 
placed  by  lot  in  the  foregoing  classes,  but  in  such 
manner  as  to  keep  the  classes  as  nearly  equal  as  pos- 
sible. In  arranging  the  classes,  care  was  taken  to 
place  the  Senators  from  the  same  state  in  different 
classes,  so  that  their  term  of  service  should  not  ex- 
pire at  the  same  time,  and  thus  leave  the  senatorial 
representation  of  the  state  vacant. 


70  AN    EXPOSITION   OF   THE 


Vacancies  in  the  Senate. 

67.  If  vacancies  happen  in  the  Senate  by  resigna- 
tion, or  otherwise,  during  the  recess  of  the  legisla- 
ture of  any  state,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of 
the  legislature,  which  must  then  fill  such  vacancies. 

68.  In  one  instance  it  was  decided  by  the  Senate 
that  the  seat  of  a  Senator  is  vacated  by  a  resignation 
addressed  to  the  executive  of  the  state,  though  he 
may  have  received  no  notice  that  it  was  accepted ; 
and  in  another  that  the  executive  of  a  state  could  not 
make  an  appointment  in  the  recess  of  its  legislature 
in  anticipation  of  a  vacancy ;  it  being  held  that  the 
vacancy  must  actually  have  occurred  before  the 
appointment  could  legally  be  made. 

Qualifications  for  a  Senator. 

69.  As  the  members  of  the  Senate  are  chosen 
differently  from  the  members  of  the  House,  and  for  a 
longer  term,  so  also  their  qualifications  are  different 
and  their  powers  greater.  No  person  can  be  a 
Senator  wTho  has  not  attained  the  age  of  thirty  years, 
and  been  nine  years  a  citizen  of  the  United  States, 
and  who  is  not,  when  elected,  an  inhabitant  of  the 
state  for  which  he  is  chosen. 


CONSTITUTION   OF   THE   UNITED   STATES.  71 

70.  When  we  reflect  that  history  furnishes  us  with 
many  conspicuous  examples  of  men  who  have  exhi- 
bited extraordinary  abilities  at  the  very  outset  of 
their  career ;  that  Hannibal,  for  instance,  was  but 
twenty-six  when  he  led  the  Carthaginian  army  into 
Italy,  Scipio  but  twenty-seven  when  entrusted  with 
the  command  of  the  Roman  legions  in  Spain,  and 
Napoleon  also  but  twenty-seven  when  he  began  his 
astonishing  career  of  victory,  it  may,  perhaps,  appear 
singular  that  the  Constitution  should  place  the  qua- 
lification for  a  Senator,  in  point  of  age,  at  thirty 
years,  rather  than  at  twenty-five,  which  is  prescribed 
for  a  Representative.  But  when  we  consider,  on  the 
other  hand,  that  genius  and  intuition  are  vouchsafed 
to  but  few,  and  that  study,  experience,  and  observa- 
tion, are  necessary  to  form  most  men  and  fit  them 
for  the  discharge  of  important  duties,  the  propriety 
of  this  qualification  will  appear.  For,  it  may  be 
confidently  affirmed,  that,  except  in  rare  instances, 
a  person  under  the  age  of  thirty  will  not  possess  that 
knowledge,  that  discipline  of  mind  and  stability  of 
character  suited  to  the  grave  position  of  a  Senator 
of  the  United  States :  the  duties  of  that  position,  as 
we  shall  presently  see,  being  of  a  more  important 
nature  and  of  a  wider  range  than  those  confided  to  a 
Representative. 

71.  It  will  be  observed  that  foreigners  are  eligible 


72  AN   EXPOSITION    OF   THE 

to  the  Senate  after  a  citizenship  of  nine  years.  They 
become  citizens  upon  naturalization ;  but  they  cannot 
become  naturalized  until  after  a  previous  residence 
of  five  years.  Thus  fourteen  years  must  expire  be- 
fore a  foreigner  can  be  elected  to  the  Senate.  It 
will  be  recollected  that  he  is  eligible  to  the  House  of 
Representatives  after  a  citizenship  of  seven  years. 
The  fact  that  the  Senate  concur  with  the  executive 
in  making  treaties  with  foreign  nations,  suggests  the 
reason  why  a  too  hasty  admission  of  adopted  citizens 
into  that  branch  of  the  government  might  be  attended 
with  serious  inconvenience,  by  creating  a  channel  for 
foreign  influence  ;  and  also  the  reason  why  the  qua- 
lification, in  point  of  citizenship,  is  raised  higher  for 
the  Senate  than  for  the  House  of  Representatives. 

72.  The  only  other  qualification  prescribed  for  a 
Senator  is,  that  he  must  when  elected  be  an  inhabit- 
ant of  the  state  for  which  he  is  chosen.  If  this 
qualification  be  important,  as  is  thought,  in  order 
that  a  Senator,  by  being  an  inhabitant  of  the  state 
for  which  he  is  chosen,  may  have  a  more  intimate 
knowledge  of  its  wants,  and  a  more  sensitive  regard 
to  its  rights,  character,  and  dignity,  it  is  singular 
that  the  Constitution  should  not  have  gone  further, 
and  required  that  he  should  continue  an  inhabitant 
of  the  state  during  his  senatorial  term.  As  it  now 
stands,  a  Senator  may  be  an  inhabitant  of  the  state 


CONSTITUTION   OF   THE   UNITED   STATES.  73 

for  which  he  is  chosen  on  the  day  of  his  election,  and 
cease  to  be  an  inhabitant  the  day  after,  and  yet  con- 
tinue its  representative. 

73.  We  have  now  considered  the  qualifications 
attached  to  the  office  of  a  Senator  of  the  Unitedi 
States.  These  qualifications,  it  will  be  observed,  are 
confined  to  three  particulars,  and  have  regard  only 
to  age,  citizenship,  and  inhabitancy.  First,  he  must 
be  thirty  years  of  age ;  secondly,  he  must  have  been, 
nine  years  a  citizen  of  the  United  States ;  and,, 
thirdly,  he  must,  when  elected,  be  an  inhabitant  of 
the  state  for  which  he  is  chosen. 

President  of  the  Senate, 

74.  The  President  of  the  Senate  is  the  Vice-Presi- 
dent of  the  United  States  ;  but  he  has  no  vote  unless* 
the  Senators  be  equally  divided.  The  House  of  Re- 
presentatives choose  their  Speaker  from  among  their 
own  members;  but  the  Vice-President  is  not  a  mem- 
ber of  the  Senate,  and  is  not  chosen  as  their  pre- 
siding officer  by  themselves. 

75.  The  reason  for  this  difference  is  not  very- 
obvious  :  but  the  necessity  of  providing  for  the  case 
of  a  vacancy  in  the  office  of  President  gave  rise  to 
the  creation  of  the  office  of  Vice-President,-  and  if  he 
were  not  to  be  President  of  the  Senate  he  would  be 
without  employment. 


74  AN    EXPOSITION   OF   THE 

Officers  and  President  pro  tempore. 

76.  With  the  exception  of  the  Vice-President,  the 
Senate  choose  all  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  exercises  the  office  of  Presi- 
dent of  the  United  States,  as  he  may  in  the  cases 
to  be  mentioned  hereafter.  It  is  customary  for  the 
Vice-President,  before  the  close  of  each  session,  to 
vacate  the  chair,  in  order  that  the  Senate  may  choose 
a  President  pro  tempore,  who  becomes  their  presiding 
officer,  in  case  the  Vice-President  should,  in  the 
recess,  succeed  to  the  Presidency,  in  consequence  of 
the  death  of  the  President  or  his  resignation,  or 
inability  to  discharge  the  powers  and  duties  of  the 
office. 

Impeachment. 

77.  We  have  already  seen  that  the  House  of 
Representatives  possess  the  sole  power  of  impeach- 
ment, and  we  must  now  add  that  the  Senate  have  the 
sole  power  of  trying  the  party  accused.  It  would  be 
obviously  unjust  to  permit  the  accusers  to  try  the 
accusation  which  they  make ;  and  hence  it  is,  that 
the  Constitution  intrusts  the  House  with  the  one 
duty  and  the  Senate  with  the  other. 

78.  This  process  of  impeachment  is  borrowed  from 


CONSTITUTION   OF   THE   UNITED   STATES.  75 

England,  where  the  Commons  impeach,  that  is,  make 
the  accusation*  and  the  Lords  try  ;  and  is  designed 
to  reach  public  functionaries,  the  President,  Vice- 
President,  heads  of  departments,  foreign  ministers, 
judges,  and  all  civil  officers  of  the  United  States, 
who,  in  the  course  of  their  employment,  are  guilty 
of  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. 

79.  When  sitting  as  a  court  of  impeachment  the 
Senate  are  required  to  be  on  oath  or  affirmation. 
When  acting  in  a  similar  capacity  the  House  of 
Lords  only  make  a  declaration  upon  their  honor.  As 
the  members  of  that  house  cannot  testify  as  witnesses, 
except  on  oath,  there  would  seem  to  be  no  good 
reason  for  permitting  them  to  act  as  judges  without 
a  similar  obligation  resting  upon  them.  Another 
difference  is,  that  two-thirds  of  the  Senators  present 
must  concur  in  order  to  convict,  whereas  a  majority 
of  the  Lords  is  sufficient  for  that  purpose.  It  is 
necessary,  however,  to  the  validity  of  a  judgment  of 
impeachment  that  at  least  twelve  of  the  Lords  concur 
in  it — a  verdict  by  less  than  twelve  would  not  be 
good. 

80.  In  a  trial  by  jury,  the  verdict  must  be  unani- 
mous, but  if  that  principle  were  to  be  adopted  in  the 
trial  of  political  offenders,  there  would  be  reason  to 
fear    that    from    political  sympathy  few    convictions 


76  AN   EXPOSITION   OF   THE 

would  ever  take  place.  And  if  a  simple  majority 
were  sufficient  there  would  be  danger,  in  times  of 
high  party  excitement,  that  the  person  impeached 
might  be  unjustly  convicted. 

81.  When  the  President  of  the  United  States  is 
tried,  the  Chief  Justice  of  the  Supreme  Court  pre- 
sides ;  because  the  Vice-President,  from  a  possible 
desire  to  succeed  to  his  office,  might  be.  tempted  to 
employ  his  position  as  President  of  the  Senate  to 
procure  his  conviction.  And  the  Chief  Justice  thus 
presiding  is  a  constituent  member  of  the  court,  and 
has  a  right  to  vote  as  such. 

Judgment  in  Cases  of  Impeachment. 

82.  Judgment  in  cases  of  impeachment  does  not 
extend  further  than  to  removal  .from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  under  the  United  States.  The  party 
convicted  is,  nevertheless,  liable  and  subject  to 
indictment,  trial,  judgment,  and  punishment,  accord- 
ing to  law. 

83.  By  confining  the  judgment  of  the  Senate  to 
removal  from,  and  disqualification  to  hold  office  under 
the  United  States,  the  Constitution  has  wisely  pre- 
vented tnose  excessive  punishments,  which  political 
resentment,  warping  the  sense  of  justice,  might  in- 
flict.    Politically,   the   offender   is   punished   by  the 


CONSTITUTION   OF   THE   UNITED   STATES.  77 

judgment  of  the  Senate  :  criminally,  he  is  punished 
by  the  courts  of  justice  according  to  the  rules  and  prin- 
ciples of  law.  Thus  the  President,  convicted  of  treason 
on  impeachment  before  the  Senate,  would  be  removed 
from,  and  might  also  be  disqualified  to  hold  office 
under  the  United  States.  But  on  trial  and  convic- 
tion for  the  same  offence  in  the  courts  of  law  he 
would  be  sentenced  to  death,  that  being  the  penalty. 

Persons  liable  to  Impeachment. 

84.  The  persons  liable  to  impeachment,  as  we 
have  already  observed,  are  the  President  and  Vice- 
President,  and  all  civil  officers  of  the  United  States ; 
and  the  offences  for  which  they  may  be  impeached 
are  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors. 

85.  Officers  of  the  army  and  navy,  not  being 
"civil  officers,"  are  not  liable  to  impeachment. 
They  are,  however,  subject  to  trial  and  punishment 
according  to  the  laws  and  usages  of  war.  It  is 
thought,  too,  that  members  of  Congress  are  not  liable 
to  impeachment,  because,  though  members  of  the 
government,  they  do  not  derive  their  appointment 
from  it,  but  from  the  states,  or  the  people  of  the 
states, 

86.  Treason  against  the  United  States  consists 
only  in  levying  war  against  them,  or  in  adhering  to 


78  AN    EXPOSITION   OF   THE 

their  enemies,  giving  them  aid  and  comfort.  Bribery 
consists  in  giving  or  receiving  a  reward  by  any  civil 
officer  of  the  United  States.,  as  an  inducement  for 
acting  contrary  to  his  duty.  In  determining  what 
are  "  high  crimes  and  misdemeanors,*"  resort  is  had 
to  the  common  law. 

Mode  of  Pi*ocedure. 

87.  The  usual  course  of  proceeding  in  a  case  of 
impeachment  is  substantially  as  follows :  The  House 
of  Representatives  having  investigated  the  charges 
laid  against  the  accused,  and  become  satisfied  that 
they  are  well-founded,  present  articles  of  impeach- 
ment or  accusation  to  the  Senate,  who  thereupon 
summon  the  party  to  appear  on  a  designated  day 
and  answer. 

88.  If  he  does  not  appear  in  obedience  to  the  sum- 
mons, the  Senate  may  try  the  impeachment  in  his 
absence.  If  he  does  appear,  he  is  furnished  with  a 
copy  of  the  articles,  and  time  is  allowed  him  to 
answer  them.  The  House  reply  in  writing  to  this 
answer  or  defence,  and  state  their  readiness  to  prove 
the  charges  they  have  preferred.  The  impeachment 
is  conducted  on  the  part  of  the  House  by  a  committee 
of  managers,  and  counsel  are  allowed  the  accused. 
The  trial  proceeds  according  to  the  rules  of  lawT  and 
parliamentary  usage. 


CONSTITUTION    OF   THE   UNITED   STATES.  79 


THE  ELECTION  OF  SENATORS  AND  REPRE- 
SENTATIVES. 

Power  of  Congress  respecting. 

89.  The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  must  be 
prescribed  in  each  state  by  the  legislature  thereof; 
but  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  places  of  choosing 
Senators. 

90.  It  is  obviously  important  that  Congress  should 
possess  the  power  to  regulate  elections  in  the  points 
mentioned,  in  order  to  guard  against  the  negligence 
or  wilful  omission  of  a  state  to  make  any  regulation 
at  all,  as  well  as  to  secure  a  uniformity  of  election  in 
all  the  states,  should  the  want  of  such  uniformity 
occasion  confusion  or  inconvenience. 

91.  Until  a  very  recent  period  the  states  were  left 
to  regulate  all  the  particulars  of  elections  for  Sena- 
tors and  Representatives  in  their  own  way,  without 
the  interposition  of  Congress.  .  In  several  of  the 
states  the  Representatives  were  chosen  by  a  general 
ticket  for  the  whole  state  ;  in  other  states  they  were 
chosen  singly  in  districts.  But  now,  in  consequence 
of  an  Act  of  Congress  passed  June  25,  1842,  Repre* 


80  AN   EXPOSITION   OF   THE 

sentatives  are  elected  by  districts,  equal  in  number 
to  the  number  of  Representatives  to  which  the  state 
is  entitled,  and  each  of  these  districts  elects  one  Re- 
presentative. [See  Act  of  Congress,  July  14,  1862, 
which  provides  that  members  of  the  House  of  Repre- 
sentatives shall  be  elected  by  single  districts.] 

92.  In  some  of  the  states  the  candidate  must  receive  a 
majority  of  all  the  votes  in  order  to  be  elected  ;  in  others 
a  plurality  is  sufficient.  By  law  the  election  must  take 
place  on  the  Tuesday  next  after  the  first  Monday  in 
November,  and  be  by  written  or  printed  ballot.  Con- 
gress may  provide  for  the  conduct  of  such  elections,  and 
protect  them  from  intimidation,  corruption  and  fraud. 
It  should  be  observed  that  when  neither  the  legislature  of 
a  state  nor  Congress  have  prescribed  the  times,  places, 
and  manner  of  holding  elections,  the  executive 
authority  of  such  state  may,  in  case  of  a  vacancy,  in 
his  writ  of  election,  fix  the  time  and  place  of  election. 

93.  Though  Congress  cannot  alter,  or  make  regu- 
lations, as  to  the  place  of  choosing  Senators,  they 
may  prescribe  the  times  at  which  the  choice  shall  be 
made.  The  exception  as  to  place  was  made  because 
the  Senators  are  elected  by  the  state  legislatures, 
whose  place  of  meeting  is  always  at  the  state  capitols 
or  seats  of  government,  unless  accidental  circum- 
stances should  render  it  necessary  for  them  to  con- 
vene elsewhere,  and  of  this  they  are  the  proper 
judges. 


CONSTITUTION   OF   THE   UNITED   STATES.  81 


THE  MEETING  OF  CONGRESS. 

How  often  Congress  must  meet. 

94.  Congress  must  assemble,  at  least,  once  in 
every  year,  and  such  meeting  must  be  on  the  first 
Monday  in  December,  unless  they  appoint  by  law  a 
different  day. 

95.  Under  the  Confederation  the  delegates  were 
elected  annually,  and  assembled  in  Congress  on  the 
first  Monday  in  November  of  every  year.  The  state 
legislatures  also  assembled  annually,  and  the  opinion 
was  well  nigh  universal  among  the  people  that  the 
annual  meeting  of  the  legislature  was  not  only  con- 
venient, but  necessary  as  a  check  on  the  executive 
department,  which,  if  left  too  long  in  control  of 
public  affairs  without  legislative  supervision,  might 
come  to  possess  a  disproportionate  influence,  and  thus 
endanger  the  public  liberty.  Hence  it  is,  that  the 
Constitution,  embodying  the  prevailing  opinion  and 
practice,  requires  Congress  to  assemble,  at  least, 
once  in  every  year. 

F 


82  AN   EXPOSITION   OF   THE 


POWERS  AND  PRIVILEGES  OF  THE  RESPECTIVE 
HOUSES. 

Each  House  to  judge  of  the  Elections,  &c. 

96.  Each  House  is  the  judge  of  th,e  elections, 
returns,  and  qualifications  of  its  own  members,  and  a 
majority  of  each  constitutes  a  quorum  to  do  business  ; 
but  a  smaller  number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such 
penalties  as  each  House  may  provide. 

Contested  Seats. 

97.  It  frequently  happens  that  there  are  two 
claimants,  each  asserting  a  right  to  hold  the  same 
seat  in  the  Senate  or  House,  as  the  case  may  be. 
Now  it  is  obvious  that  some  tribunal  must  be  clothed 
with  the  power  to  decide  between  them,  to  investigate 
the  facts,  and  ascertain  which  one  of  them  is  the 
rightful  claimant.  This  power  might  have  been 
vested  in  the  Supreme  Court ;  but  it  was  thought 
best  to  confide  it  directly  to  each  house  of  Congress. 
The  decision  of  the  House  is  final  and  conclusive. 

98.  If  the  executive  of  the  state  should  refuse  to 
grant  a  certificate  of  election,  this,  according  to  one 


CONSTITUTION    OF   THE   UNITED   STATES.  83 

decision  of  the  House,  would  not  prejudice  the  right 
of  the  person  entitled  to  a  seat ;  nor,  on  the  other 
hand,  would  a  certificate  of  election  be  conclusive 
upon  the  House.  In  either  case  it  may  examine 
other  evidence,  and  decide  according  to  the  weight 
and  nature  of  the  proofs. 

Quorum. 

99.  Neither  house  can  transact  business  without  a 
majority  of  the  members  being  present.  The  Con- 
stitution has  wisely  established  this  rule,  and  thus 
rendered  it  impossible  for  laws  to  be  passed  by 
stealth  or  surprise,  and  in  opposition  to  the  opinions 
of  the  majority  of  the  House.  But  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members.  By 
the  rules  of  the  House  of  Representatives,  any  fifteen 
members  (including  the  Speaker,  if  there  be  one) 
may  compel  the  attendance  of  absent  members.  Thus 
a  dissolution  of  either  house  is  guarded  against,  and 
a  quorum  at  the  same  time  insured. 

Rules  of  Proceeding,  &c. 

100.  Each  House  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  beha- 
vior, and,  with  the  concurrence  of  two-thirds,  expel 
a  member. 


84  AN   EXPOSITION   OF   THE 

101.  The  ordinary  course  of  proceeding  in  Con- 
gress, under  the  rules  established  by  the  respective 
Houses,  is  as  follows :  One  day's  notice  of  a  motion 
for  leave  to  bring  in  a  bill,  in  cases  of  a  general 
nature,  is  required.  Every  bill  must  have  three 
readings  previous  to  its  being  passed,  and  these 
readings  must  be  on  different  days,  and  no  bill  can 
be  committed  or  amended  until  it  has  been  twice 
read.  The  object  of  these  forms  is,  to  guard  against 
surprise  or  imposition.  In  the  House  of  Representa- 
tives, bills,  after  being  twice  read,  are  committed  to 
a  committee  of  the  whole  house,  when  the  Speaker 
leaves  the  chair  and  takes  part,  if  he  chooses,  in  the 
debate  as  an  ordinary  member,  and  a  chairman  is 
appointed  in  his  stead. 

102.  When  a  bill  has  passed  one  House  it  is 
transmitted  to  the  other,  and  goes  through  a  similar 
form  ;  though  in  the  Senate  there  is  less  formality, 
and  bills  are  often  committed  to  a  select  committee, 
chosen  by  ballot.  If  a  bill  be  altered  or  amended  in 
the  House  to  which  it  is  transmitted,  it  is  then 
returned  to  the  House  in  which  it  originated,  and  if 
the  two  Houses  cannot  agree,  they  appoint  com- 
mittees to  confer  together  on  the  subject.  When  a 
bill  is  engrossed,  and  has  passed  both  Houses,  it  is 
transmitted  to  the  President  for  his  sanction. 


CONSTITUTION   OF   THE    UNITED   STATES.  85 

Punishment  of  Members. 

103.  It  has  been  contended  that  the  Constitution 
only  confers  on  each  House  of  Congress  the  power 
to  punish  its  members  for  disorderly  behavior  during 
the  session  of  the  House,  and  within  its  presence. 
But  the  prevailing  opinion  is,  that  members  may  be 
punished  for  disorderly  behavior  committed  during 
the  session  of  Congress,  no  matter  whether  it  be 
committed  within  or  without  the  walls  of  the  House ; 
and  that  a  member  may  be  expelled  for  any  misde- 
meanor inconsistent  with  his  trust  and  duty,  no 
matter  whether  he  commits  the  misdemeanor  during 
the  session  of  Congress  or  otherwise,  nor  whether  such 
misdemeanor  is  punishable  by  statute  or  not. 

104.  Each  House  of  Congress  not  only  possesses  this 
express  power  of  punishing  its  own  members,  but  the 
implied  power  of  punishing  for  contumacy  when  a  wit- 
ness refuses  to  answer  proper  questions,  in  a  matter 
before  either  House,  and  into  which  that  House  has  juris- 
diction to  inquire.  But  the  Houses  of  Congress  do  not 
possess  a  general  power  of  punishing  for  contempt.  If 
they  attempt  to  exercise  it,  their  action  is  not  conclusive, 
and  the  resolution  of  either  House  finding  a  person  guilty 
of  contempt,  and  the  warrant  of  its  presiding  officer  for 
his  commitment  to  prison,  are  no  justification,  when  it 
appears  that  the  House  was  without  authority  in  the 
particular  matter.  And  the  officer  executing  such  war- 
rant is  answerable  in  an  action  for  false  imprisonment. 


86  AN    EXPOSITION   OF   THE 

105.  The  extent  to  which  this  power  may  be  carried  in 
a  proper  case,  has  been  a  subject  of  grave  discussion,  and 
the  conclusion  arrived  at  is,  that  it  is  limited  to  impris- 
onment, which  must  terminate  with  the  adjournment  of 
Congress.  For  although  the  legislative  power  continues 
perpetual,  the  legislative  body  ceases  to  exist  at  the 
moment  of  its  adjournment  or  periodical  dissolution. 

The  Journal  of  Proceedings. 

106.  Each  House  must  keep  a  journal  of  its  pro- 
ceedings, and,  from  time  to  time,  publish  the  same, 
excepting  such  parts  as  may,  in  their  judgment, 
require  secrecy ;  and  the  yeas  and  nays  of  the  mem- 
bers of  either  House,  on  any  question,  must,  at  the 
desire  of  one-fifth  of  those  present,  be  entered  on 
the  journal. 

107.  A  journal  preserves  in  permanent  form  a 
record  of  the  proceedings  of  Congress,  and  its  publi- 
cation, from  time  to  time,  insures  to  the  people 
authentic  information  of  their  official  acts.  As  the 
proceedings  of  Congress,  however,  are  generally 
conducted  in  public,  and  immediately  communicated 
to  the  people  through  the  press,  and  in  advance  of 
the  official  publication  of  their  journal,  this  provision 
of  the  Constitution  may,  on  a  first  view,  seem  to  be 
needless.  But  when  we  consider  that  neither  House 
is  required  to  sit  with  open  doors,  and  might,  if  they 
chose,  conduct  all  their  proceedings  in  secret,  as  was 


CONSTITUTION    OF   THE   UNITED   STATES.  87 

done  by  the  Senate  at  the  outset  of  the  government, 
the  importance  of  this  provision  for  the  publication 
of  their  journal  will  appear. 

108.  When  business  of  a  confidential  nature  is 
brought  before  either  House,  all  persons  are  excluded 
but  their  officers.  The  Senate,  too,  holds  what  are 
termed  "Executive  Sessions, "  in  which  confidential 
communications  from  the  President  are  considered, 
such  as  nominations  to  office,  treaties,  &c.  The 
journal  of  its  proceedings  on  occasions  of  this  kind, 
unless  the  injunction  of  secrecy  has  been  removed, 
is  not  made  public,  but  is  kept  in  a  distinct  record, 
which  is  only  accessible  to  certain  privileged  persons. 

The  Yeas  and  Nays. 

109.  The  importance  of  that  portion  of  the  clause 
which  requires  the  yeas  and  nays  to  be  entered  on 
the  journal,  if  one-fifth  of  the  members  present 
desire  it,  is  obvious,  By  this  means  the  people  know 
how  their  representatives  vote,  and  thus  caution  and 
deliberation  are  induced  on  the  part  of  the  latter. 
As  too  much  time,  however,  would  be  consumed  in 
calling  the  yeas  and  nays  on  every  question,  and  as 
they  might  be  called  by  factious  or  dissatisfied 
members  for  the  sole  purpose  of  delaying  and  embar- 
rassing the  passage  of  measures,  it  is  wisely  provided 
that  they  shall  not  be  called,  or  entered  upon  the 
journal,  unless  at  the  desire  of  one-fifth  of  the  mem- 
bers present. 


bb  AN    EXPOSITION    OF   THE 

Adjournments. 

110.  Neither  House,  during  the  session  of  Con- 
gress, can,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place 
than  that  in  which  the  two  Houses  shall  be  sitting. 

111.  This  clause  was  intended  to  prevent  either 
House  from  interrupting  the  regular  course  of  legisla- 
tion by  undue  adjournments.  In  this  particular 
they  are  restrained  both  as  to  time  and  place.  In 
case  of  disagreement  between  them,  with  respect  to 
the  time  of  adjournment,  the  President  may  adjourn 
them  to  such  time  as  he  shall  think  proper.  With 
this  exception,  the  executive  department  has  nothing 
whatever  to  do  with  the  duration  or  the  adjournment 
of  Congress.  In  England,  on  the  contrary,  the 
King  may  prorogue  or  dissolve  Parliament  at  his 
pleasure. 

Duration  of  Congress. 

112.  It  will  be  recollected  that  the  members  of 
the  House  are  chosen  for  two  years,  and  also  that 
the  seats  of  one-third  of  the  Senators  become  vacant 
every  second  year.  Hence  the  duration  of  each 
Congress  is  two  years.  And  as  the  Constitution 
requires  them  to  assemble  at  least  once  in  every 
year,  it  follows  that  each  Congress  will  necessarily 
hold  not  less  than  two  sessions.  In  addition  to  these, 
the  President  is  empowered,  on  extraordinary  occa- 
sions, to  convene  both  Houses,  or  either  of  them. 


CONSTITUTION   OF   THE   UNITED   STATES.  89 


PRIVILEGES  AND  DISABILITIES  OF  MEMBERS. 

Compensation. 

113.  The  Senators  and  Representatives  receive  a 
compensation  for  their  services,  ascertained  by  law, 
and  paid  out  of  the  Treasury  of  the  United  States. 

114.  In  England,  the  members  of  Parliament  re- 
ceive no  compensation ;  their  services  being  con- 
sidered merely  honorary.  It  seems,  however,  to 
harmonize  best  with  the  genius  of  a  republican 
government  to  adopt  the  contrary  practice.  Without 
compensation  an  undue  advantage  would  be  given  to 
the  rich.  Men  of  talents,  who  were  not  favored  by 
fortune,  might  be  deterred  from  seeking  or  accepting 
a  position  whose  expenses  they  could  ill  support. 
And,  if  they  did  obtain  a  seat  in  the  national  coun- 
cils, their  necessities  might  expose  them  to  pecuniary 
temptations. 

115.  The  Congress  of  the  Confederation  were  paid 
by  their  respective  states ;  but  the  Senators  and  Re- 
presentatives under  the  Constitution  are  paid  out  of 
the  Treasury  of  the  United  States — the  amount  being 
determined  by  an  act  of  Congress.     Under  the  first 

8* 


90  AN   EXPOSITION   OF   THE 

system  it  was  thought  the  members  of  Congress  were 
too  much  the  mere  agents  and  advocates  of  state 
interests,  instead  of  being  the  impartial  umpires  and 
guardians  of  justice  and  the  general  good.  To  avoid 
this  evil,  to  prevent  too  much  dependence  on  the 
states,  the  Constitution  changed  the  mode  of  pay- 
ment from  the  states  to  the  United  States. 

Freedom  from  Arrest. 

116.  The  Senators  and  Representatives  are,  in  all 
cases,  except  treason,  felony,  and  breach  of  the 
peace,  privileged  from  arrest  during  their  attendance 
at  the  session  of  their  respective  Houses,  and  in  going 
to,  and  returning  from,  the  same.  And,  for  any 
speech  or  debate  in  either  House  they  are  not  to  be 
questioned  in  any  other  place. 

117.  The  privilege  of  members  of  Congress  from 
arrest,  except  for  the  offences  mentioned  in  the  pre- 
ceding section,  is  founded  upon  important  public 
reasons.  They  are  exempted  while  going,  because 
it  is  necessary  that  they  should  reach  the  scene  of 
their  labors  ;  they  are  exempted  while  there,  because 
if  they  could  be  withdrawn  from  their  seats  at  the 
suit  of  creditors,  or  by  any  other  merely  civil  pro- 
cess, such  as  a  summons  to  testify  as  witnesses,  or  to 
serve  as  jurors,  the  voice  of  their  constituents  would 
be    lost,   and    the    public   interests,    perhaps,   suffer 


CONSTITUTION   OF   THE   UNITED   STATES.  91 

serious  inconvenience  ;  they  are  exempted  while 
returning,  because,  having  gone  from  home  in  the 
service  of  the  public,  it  is  proper  that  the  public 
should  insure  their  return  to  it  safe  from  interruption. 

118.  It  has  also  been  held  that  this  privilege  from 
arrest  extends  to  one  duly  commissioned  as  a  member, 
though  Congress  should  decide,  upon  investigation, 
that  he  is  not  entitled  to  a  seat.  In  going  and 
returning  a  member  is  not  restricted  to  a  precise 
number  of  days,  but  the  law  allows  him  a  reasonable 
time.  Nor  is  he  restricted  to  the  most  direct  route, 
and  any  little  deviation  from  it  will  be  presumed  to 
have  been  directed  by  some  superior  convenience  or 
necessity.  Neither  does  the  law  compel  him  to  set 
out  on  his  return  immediately  upon  the  adjournment'; 
but  allows  him  time  to  settle  his  private  affairs,  and 
to  prepare  for  his  journey. 

119.  If  the  immunity  from  arrest  is  disregarded, 
the  member  thus  unlawfully  arrested  will  at  once  be 
discharged  on  application  to  a  court  of  justice.  He 
may  also  maintain  an  action  against  the  party 
making  the  arrest,  or  procure  his  indictment  for  the 
trespass.  But  the  privileges  of  a  member  are  not  so 
extensive  that  his  suits  cannot  be  forced  to  a  trial  and 
decision  while  the  session  of  Congress  continues.  While 
privileged  ffom  arrests  both  on  judicial  and  mesne  pro- 
cess, and  from  the  service  of  a  summons  or  other  civil 
process  while  in  attendance  on  their  public  duties,  none 


92  AN   EXPOSITION   OF    THE 

of  the  reasons  on  which  this  privilege  is  allowed  can 
extend  it  to  the  right  to  continue  a  cause  pending  in 
court. 

Immunity  of  Debate, 

120.  For  any  speech  or  debate  in  either  house, 
the  members  are  not  to  be  questioned  in  any  other 
place.  The  object  of  this  clause  is  to  secure  the 
utmost  freedom  in  the  discussion  of  public  measures. 
It  is  a  moot  question,  however,  whether  a  member, 
who  publishes  his  speech  which  contains  libellous 
matter,  is  liable  to  an  action  and  prosecution  therefor, 
as  in  common  cases  of  libel?  Though  a  member 
may  not  be  questioned  elsewhere  for  any  slander  he 
may  utter  in  debate,  it  is  contended  that  the  publica- 
tion of  such  slander  is  an  independent  act,  not  at  all 
connected  with  the  discharge  of  his  duties,  and  not 
protected  by  the  privilege  granted  him  by  the  Con- 
stitution. But  where  Congress  direct  the  publication 
of  their  debates,  the  responsibility  of  the  individual 
member  would  seem  to  cease,  because  the  publication  of 
his  speech  is  not  his  act,  but  the  act  of  the  represent- 
ative body.  In  any  event,  however,  the  law  would  attach 
responsibility  on  the  publisher. 

121.  The  constitutional  provision,  securing  immunity 
of  debate,  is  not  limited  to  uttering  a  speech,  but  to  the 
giving  of  a  vote,  to  the  making  of  a  written  report,  to 
the  offering  of  a  resolution,  and  to  every  other  act  result- 
ing from  the  nature  and  in  the  execution  of  the  office. 


CONSTITUTION   OF   THE   UNITED   STATES.  93 

In  short,  to  things  generally  done  in  a  session  of  either 
House  by  one  of  its  members  in  relation  to  the  business 
before  it.  But  if  either  House  of  Congress  should  order 
an  illegal  act,  though  the  members  may  be  exempt  from 
question  therefor,  yet  the  person  executing  it  would  be 
liable  to  an  action. 

Disability  to  hold  Office. 
122.  No  Senator  or  Representative  can,  during 
the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United 
States,  which  has  been  created,  or  the  emoluments 
whereof  have  been  increased,  during  such  time. 
And  no  person,  holding  any  office  under  the  United 
States,  can  be  a  member  of  either  House  of  Congress 
during  his  continuance  in  office. 

123.  It  was  intended  by  the  first  part  of  this 
clause  to  prevent  Congress  from  creating  new  offices 
or  increasing  the  emoluments  of  old  ones  from  per- 
sonal considerations ;  and  by  the  second  part  to 
guard  against  improper  bias  on  the  part  of  its  mem- 
bers. Hence,  a  member  of  Congress  appointed  to  an 
office  under  the  United  States,  must  resign  his  seat. 
If  he  accepts  the  office  without  such  resignation,  it 
operates  as  a  forfeiture  of  his  seat.  On  the  other 
hand,  an  officer  of  the  United  States,  if  elected  a 
member  of  Congress,  must  resign  his  office,  though 


94  AJS   EXPOSITION    OF   THE 

his  continuing  to  execute  its  duties  after  his  election 
does  not  operate  as  a  disqualification  ;  it  only  being 
necessary  that  he  should  resign  his  office  prior  to 
taking  his  seat.  In  other  words,  a  person  cannot  at 
the  same  time  be  a  member  of  Congress  and  hold 
office  under  the  United  States.  The  acceptance  of  a 
military  commission  in*  a  volunteer  regiment,  mustered 
into  the  service  of  the  United  States,  operates  as  a 
forfeiture  of  his  seat. 


CONSTITUTION   OF   THE    UNITE: 

>       OP  THR 

UNIVERSITY] 

THE   PASSAGE  OPSfc^Sj) 

27*6  Initiative  of  Revenue  Bills. 

124.  All  bills  for  raising  revenue  must  originate 
in  the  House  of  Representatives ;  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on  other 
bills. 

125.  It  was  thought  that  the  House  of  Represent- 
atives, being  more  popular  in  its  character,  more 
immediately  dependent  on  the  people,  and  likely  to 
possess  more  extensive  local  information  than  the 
Senate,  was  the  fittest  body  to  be  intrusted  with  the 
initiative  in  the  imposition  of  taxes.  Under  the 
English  system  the  Commons  originate  money  bills, 
and  the  Lords  simply  approve  or  reject.  Unlike  our 
Senate,  they  have  no  power  to  alter  or  amend. 

126.  By  bills  for  raising  revenue  are  meant  bills 
to  levy  taxes  in  the  usual  sense  of  the  word ;  and  not 
bills  for  other  purposes,  though  they  may  incidentally 
create  revenue. 

The  Veto  Poicer. 

127.  Every  bill  which  has  passed  the  House  of 
Representatives  and  the  Senate  must,  before  it 
becomes  a  law,  be  presented  to  the  President  of  the 


96  AN    EXPOSITION   OF   THE 

United  States ;  if  he  approves  he  must  sign  it,  but 
if  not  he  must  return  it  with  his  objections  to  the 
House  in  which  it  originated,  who  must  enter  the 
objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.  If  after  such  reconsideration  two- 
thirds  of  that  House  agree  to  pass  the  bill,  it  must 
be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  must  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  House  it 
becomes  a  law.  But  in  all  such  cases  the  votes  of 
both  Houses  must  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  or  against 
the  bill  be  entered  on  the  journal  of  each  House 
respectively.  If  any  bill  is  not  returned  by  the 
President  within  ten  days  (Sundays  excepted)  after 
having  been  presented  to  him,  it  becomes  a  law,  in 
like  manner  as  if  he  had  signed  it,  unless  the  Con- 
gress, by  their  adjournment,  prevent  its  return,  in 
which  case  it  does  not  become  a  law. 
/  128.  The  power  with  which  the  President  is 
[invested  of  objecting  to  the  passage  of  a  bill  is  called 
i  the  veto  power ;  and  both  the  word  and  the  power 
are  derived  from  the  Romans.  The  word  itself 
means  I  forbid,  and  was  used  by  the  tribunes  of  the 
people  to  hinder  the  passage  of  any  obnoxious  decree 
of  the  senate.  The  object  of  placing  this  power  in 
the  hands  of  the  President  is  to  secure  the  authority 


CONSTITUTION   OF   THE   UNITED   STATES.  97 

confided  to  the  executive  department  from  encroach- 
ment, and  also  to  interpose  another  check  against 
hasty  or  improvident  legislation.  But,  in  order  to 
prevent  an  abuse  of  the  power,  it  is  provided  that 
two-thirds  of  both  Houses,  that  is,  two-thirds  of  a 
quorum  of  each  House,  may  pass  a  bill  notwithstand- 
ing his  veto.  His  returning  a  bill,  with  the  reasons 
and  arguments  that  induced  him  to  return  it,  is  not 
an  absolute  defeat  of  the  bill,  but  an  appeal,  as  it 
were,  to  the  legislature  to  reconsider  it. 

Joint  Orders,  Resolutions,  &c. 

129.  Not  only  must  every  bill  which  has  passed 
the  House  and  Senate  be  presented  to  the  President 
for  his  approval  or  rejection,  but  every  order,  reso- 
lution, or  vote  to  which  the  concurrence  of  both 
Houses  is  necessary,  except  on  a  question  of  adjourn- 
ment. And  before  the  same  can  take  eifect  it  must 
be  approved  by  him,  or,  being  disapproved,  must  be 
repassed  by  two-thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules  and  limita- 
tions prescribed  in  the  case  of  a  bill. 

130.  The  object  of  thus  extending  the  veto  power 
is  to  prevent  Congress  from  evading  the  President's 
negative  by  passing  laws  in  the  form  of  an  order  or 
resolution  instead  of  a  bill.  This  does  not  apply, 
however,  to  orders,  resolutions,  or  votes  to  which  the 

9  G 


98  AN    EXPOSITION   OF   THE 

concurrence  of  both  Houses  is  not  necessary.  But 
separate  resolutions  of  either  House  of  Congress, 
except  in  matters  appertaining  to  their  own  parlia- 
mentary rights,  have  no  legal  effect  to  constrain  the 
action  of  the  President  or  heads  of  departments. 

131.  When  a  bill  has  been  passed  by  Congress  it 
is  enrolled  on  parchment  of  uniform  size  and  signed 
by  the  Speaker  of  the  House  of  Representatives  and 
the  President  of  the  Senate.  It  is  then  sent  to  the 
President  of  the  United  States,  and  if  approved 
and  signed  by  him  he  notifies  Congress  of  the  fact, 
and  deposits  the  original  in  the  office  of  the  Secre- 
tary of  State.  Every  bill  operates  as  a  law  from  the 
time  when  it  is  approved  by  the  President,  and  is  pros 
pective  in  its  effect  only.  The  legal  fiction  that  there 
is  no  fraction  of  a  day  is  not  applicable  in  such  a 
case. 


CONSTITUTION    OF   THE   UNITED   STATES.  99 ' 


THE  POWERS  OF  CONGRESS. 

Taxation. 

132.  We  have  now  arrived  at  that  part  of  the  Con- 
stitution which  has  given  rise  to  much  discussion, 
and  with  regard  to  which  opinions  have  been  greatly 
divided.  In  treating  upon  it  we  shall  endeavor  to 
confine  ourselves  within  the  limits  marked  out  by  the 
well-settled  practice  of  the  government,  and  the 
authoritative  exposition  of  the  courts. 

133.  Congress  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general  welfare 
of  the  United  States;  but  all  duties,  imposts,  and 
excises  must  be  uniform  throughout  the  United 
States. 

134.  This  clause  of  the  Constitution  has  been  a 
subject  of  much  controversy.  On  one  hand  it  has 
been  said  that  it  empowers  Congress  to  lay  and  col- 
lect taxes,  duties,  imposts,  and  excises,  and  also  to 
pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States.  On  the 
other  it  is  contended  that  Congress  is  empowered  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises, 


100  AN    EXPOSITION   OF   THE 

for  the  purpose  of  paying  the  debts  and  providing 
for  the  common  defence  and  general  welfare.  The 
latter  is  the  common  and  doubtless  correct  interpre- 
tation. The  power  to  tax  is  not,  therefore  a  dis- 
tinct and  unlimited  power;  but  is  restrained  to  the 
payment,  of  the  debts,  and  providing  a  revenue  for  those 
public  purposes,  contemplated  and  authorized  by  the  Con- 
stitution. Moreover  Congress  cannot  tax  the  means  and 
instrumentalities  by  which  the  states  carry  on  the  opera- 
tions of  their  respective  governments.  They  cannot 
tax  its  judicial  process,  nor  the  salaries  of  its  officers, 
nor  require  a  stamp  upon  the  official  bonds  of  state 
officers.  This  exemption  arises  from  implication,  and 
rests  upon  the  law  of  self-preservation.  If  the  means 
employed  by  a  state  government  in  conducting  its 
operations  could  be  taxed  at  discretion  by  the  general 
government,  the  former  would  exist  at  the  mercy  of 
the  latter.  On  the  other  hand,  as  we  shall  see  here- 
after, the  instrumentalities  of  the  general  government 
are  equally  exempt  from  the  influence  of  state  taxa- 
tion. But  it  is  only  property  exempt  from  taxation 
by  the  Constitution  that  is  beyond  the  taxing  power 
of  the  states.  Congress  has  no  power  to  exempt  other 
property  from  such  taxation. 

Different  Kinds  of  Taxes. 
135.  Taxes  are  commonly  designated  as  direct  or 
indirect,  according  to  their  character,  and  are  imposed 


I 


CONSTITUTION   OF   THE   UNITED    STATES.  101 

by  the  government  for  the  service  of  the  state. 
Direct  taxes  are  laid  directly  on  land  or  real  pro- 
perty, or  upon  persons,  in  which  case  they  are  spoken 
of  as  personal,  poll,  or  capitation  taxes.  Indirect 
taxes  are  laid  on  articles  of  consumption,  whether 
those  articles  consist  of  imports  or  manufactures.  In 
this  description  of  tax  are  included  duties,  imposts, 
and  excises.  By  duties  are  generally  meant  taxes 
upon  goods,  imported  or  exported,  though,  as  we  shall 
see  hereafter,  the  Constitution  inhibits  a  tax  or  duty 
on  articles  exported  from  any  state.  Imposts,  in  a 
restricted  sense,  mean  taxes  on  goods  imported  from 
abroad.  Excise  is  an  inland  tax  levied  upon  various 
commodities  of  home  use  or  consumption,  usually 
while  in  the  hands  of  the  producer  or  manufacturer. 

Rule  by  which  Taxes  are  levied, 

136.  All  duties,  imposts,  and  excises,  must  bev\ 
uniform  throughout  the  United  States ;  but  a  dif- 
ferent rule  is  prescribed  for  capitation  or  other  direct 
taxes.  These  must  be  levied,  not  according  to  the 
rule  of  uniformity,  but  according  to  the  rule  of  appor- 
tionment, that  is,  they,  must  be  apportioned  among 
the  several  states,  according  to  their  respective 
numbers. 

137.  A  case  decided  by  the  Supreme  Court  soon 
after  the  organization  of  the  government,  furnishes  a 


102  AN   EXPOSITION   OF   THE 

very  good  illustration  of  the  difference  between  the 
rule  which  requires  that  direct  taxes  shall  be  appor- 
tioned among  the  states  according  to  their  respective 
numbers,  and  the  rule  which  requires  that  duties, 
imposts,  and  excises,  shall  be  uniform  throughout  the 
United  States.  It  arose  as  follows  : — By  an  Act  of 
Congress,  passed  in  1794,  a  duty  of  ten  dollars  each 
per  annum  was  laid  on  carriages,  and  the  levy  made 
uniform  throughout  the  United  States,  that  is,  each 
owner  of  a  carriage  was  to  pay  ten  dollars  per  annum, 
no  matter  whether  the  number  of  such  owners  in  a 
particular  state  was  few  or  many.  The  constitution- 
ality of  the  act  was  contested  upon  the  ground  that 
it  was  a  direct  tax,  and  hence  should  be  apportioned 
among  the  states  according  to  their  numbers. 

138.  In  this  case,  the  proportion  of  tax  awarded 
to  a  particular  state,  determined  by  its  numbers, 
might  be  two  hundred  dollars,  and  yet  there  might 
not  be  more  than  two  carriages  in  that  state.  Hence, 
although  Congress  only  intended  to  lay  a  tax  of  ten 
dollars  on  each  carriage,  the  owners  of  the  two  car- 
riages would  be  compelled  to  pay  one  hundred  dollars 
each.  The  Supreme  Court,  however,  decided  that 
the  carriage  tax  was  not  a  direct  tax  in  the  sense  of 
the  Constitution,  and  hence  should  be  levied  as  Con- 
gress had  directed  according  to  the  rule  of  unifor- 
mity.    The  same  rule  applies  to  taxes  on  income,  the 


CONSTITUTION   OF   THE   UNITED   STATES.  103 

business  of  insurance  companies,  bank  circulation,  and 
succession  taxes.  None  of  these  are  direct  taxes  in  the 
sense  of  the  Constitution.  In  addition  to  the  fact  that 
direct  taxes  were  supposed  to  have  reference  only  to  land 
and  persons,  this  consideration,  in  the  carriage  case,  was 
decisive  wTith  the  court,  namely,  that  no  tax  could  be  a 
direct  tax  in  the  sense  of  the  Constitution  which  was 
incapable  of  apportionment  according  to  the  constitu- 
tional rule.  And,  if  in  any  one  of  the  states  there 
should  be  no  carriages,  then  there  could  be  no  appor- 
tionment at  all.  A  tax  is  uniform  when  it  operates  with 
the  same  force  and  effect  in  every  place  where  the  subject 
of  it  is  found. 


Taxes  may  be  extended  to  the  Territories,  &c. 

139.  The  power  to  levy  and  collect  taxes,  duties, 
imposts,  and  excises,  is  coextensive  with  the  territory 
of  the  United  States.  Hence  Congress,  in  laying  a 
direct  tax,  may  extend  it  to  the  District  of  Columbia 
and  the  territories.  If  this  be  done,  the  same  rule 
which  is  applied  to  the  states  must  be  applied  to 
them,  namely,  the  rule  of  apportionment.  It  is 
equally  necessary  too  that  uniformity  in  the  imposi- 
tion of  imposts,  duties,  and  excises,  should  be  ob- 
served in  the  one  as  in  the  other. 


104  AN   EXPOSITION   OF   THE 

Power  to  borrow  Money. 

140.  Congress  have  not  only  the  power  to  raise 
money  by  means  of  taxes,  duties,  imposts,  and  ex- 
cises, but  the  power  to  borrow  money  on  the  credit 
of  the  United  States — a  power  absolutely  necessary 
in  order  that  provision  may  be  made  for  those  exi 
gencies  which  arise  in  time  of  war,  and  those  extra 
ordinary  and  unexpected  demands  on  the  treasury 
which  occasionally  occur  in  time  of  peace.  And  the 
states  have  no  power  to  tax  the  loans  thus  made. 

Commerce. 

141.  Among  the  more  prominent  defects  of  the 
Articles  of  Confederation  was  the  want  of  a  general 
authority  over  commerce.  This  induced  injurious 
regulations  on  the  part  of  foreign  nations,  from  their 
knowledge  that  Congress  had  no  power  to  adopt 
countervailing  measures,  and  also  led  to  most  irri- 
tating and  complicating  regulations  on  the  part  of 
the  several  states.  Subjected  to  this  double  pressure, 
the  commerce  of  the  country  was  at  a  stand,  and  the 
union  and  harmony  of  the  states  were  fast  giving 
way  to  mutual  discord  and  hatred.  The  evil  was 
great  and  pressing,  and  was  one  of  the  chief  causes  that 
conduced  to  the  call  of  the  Federal  Convention  and 
the   establishment   of  the   Constitution.      Hence,   it 


CONSTITUTION   OF   THE   UNITED   STATES.  105 

*?*?  provided  that  Congress  should  have  power  to 
regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes. 

142.  To  regulate  commerce  is  to  prescribe  the  rule 
by  which  commerce  is  to  be  governed.  Commerce 
with  foreign  nations  and  among  the  several  states, 
means  intercourse  with  those  nations,  and  among 
those  states,  for  the  purposes  of  trade,  be  the  object 
of  the  trade  what  it  mav :  and  this  intercourse  in- 
eludes  all  the  means  by  which  it  can  be  carried  on, 
whether  by  the  free  navigation  of  the  waters  of  the 
several  states,  or  by  a  passage  over  land  through  the 
states,  wThen  such  passage  becomes  necessary  to  the 
commercial  intercourse  between  the  states. 

143.  Commerce  among  the  several  states  means 
commerce  which  concerns  more  states  than  one.  It 
does  not  comprehend  any  commerce  which  is  purely 
internal,  between  man  and  man  in  a-  single  state,  or 
between  different  parts  of  the  same  state,  and  not 
extending  to  or  affecting  other  states.  At  the  same 
time  commerce  among  the  states  does  not  stop  at  the 
external  boundary  line  of  each  state,  but  may  be 
introduced  into  the  interior.  The  word  among  means 
intermingled  with.  And  this  commerce,  that  is,  inter- 
state transportation  of  passengers  or  property  (and  re- 
ceiving and  landing  either  is  incidental  to  their  trans- 
portation), is  beyond  the  reach  of  state  legislation.  Hence 
state  taxation  of  persons  passing  from  one  state  to  another, 


106  AN    EXPOSITION   OP   THE 

or  of  merchandise  from  state  to  state,  is  a  burden  upon 
such  commerce,  in  short  is  a  regulation  of  it,  and  an 
invasion  of  the  domain  of  the  general  government,  and 
prohibited  by  its  Constitution.  But  a  state  may  tax 
the  gross  receipts  of  a  railroad  company.  See  post, 
sec.  255. 

144.  The  power  to  regulate  commerce  may  be  variously 
applied,  as,  for  example,  by  laws  for  the  regulation  of 
railroad  and  telegraph  companies ;  of  the  coasting  trade 
and  fisheries,  and  wrecks  of  the  sea,  and  for  the  punish- 
ment of  crimes  upon  stranded  vessels ;  for  the  govern- 
ment of  seamen  on  board  of  American  ships,  and  the 
imposition  of  embargoes ;  for  the  construction  of  light- 
houses and  buoys,  the  removal  of  obstructions  to  navi- 
gation in  rivers,  bays,  lakes  and  harbors ;  the  imposition 
of  duties  upon  articles  of  importation,  and  a  tax  upon 
immigrants ;  the  designation  of  particular  ports  of  entry 
and  delivery,  and  for  conferring  privileges  upon  ships 
built  and  owned  in  the  United  States. 

145.  While  it  has  been  held  that  the  power  to 
regulate  commerce  is  exclusive,  so  that  the  states 
cannot  legislate  upon  the  same  subject,  it  has  been 
equally  held  that  they  may  enact  .police  regulations, 
although  such  regulations  operate  on  the  agents  and 
subjects  of  commerce,  restricted  only  by  this  limita- 
tion, that  in  the  event  of  collision,  the  law  of  the 
state  must  yield  to  that  of  Congress.  Thus  the 
states  may  pass  license  laws  restricting  the  sale  of 
spirituous  liquors  imported  either  from  foreign  coun- 


CONSTITUTION    OF   THE   UNITED   STATES.  107 

tries  or  the  other  states  of  the  Union;  or  prohibiting  the 
manufacture  and  sales  of  intoxicating  liquors  altogether; 
and  inspection  and  quarantine  laws  which  delay  the  land- 
ing of  ships  and  cargoes,  and  also  laws  for  the  removal 
or  destruction  of  unsound  and  infectious  articles  which 
have  been  imported,  and  laws  regulating  pilots  and  to 
protect  their  fisheries.  Because  the  right  of  Congress  to 
regulate  commerce  necessarily  contemplates  limita- 
tions and  exceptions  in  favor  of  the  states,  in  cases 
affecting  the  morals,  health,  or  safety  of  the  com- 
munity. 

146.  The  states  may  pass  laws,  too,  requiring  the 
master  of  every  vessel  arriving  in  one  of  their  ports 
to  make  a  report,  in  writiug,  respecting  his  passen- 
gers, but  they  cannot  exact  bonds  indemnifying  the  au- 
thorities of  a  port  from  all  expenses  and  charges  w^hich 
may  be  incurred  in  the  maintenance  of  all  such  passen- 
gers, indiscriminately,  or  in  lieu  of  such  bonds  require  the 
payment  of  commutation  money.  The  whole  subject  has 
been  confided  to  Congress,  and  Congress  is  the  proper  body 
to  legislate  with  regard  to  it.  That  the  states  can  by  police 
regulations,  protect  themselves  against  actual  paupers, 
vagrants,  criminals  and  diseased  persons,  arriving  from 
abroad,  may  be  conceded.  They  may  exclude  them  from 
their  limits;  and  they  may  also  exclude  property  dan- 
gerous to  the  property  of  their  citizens,  as  animals  having 
contagious  or  infectious  disease. 

147.  But  they  cannot,  under  pretence  of  their  police 
powers,  substantially  prohibit  or  burden  either  foreign  or 


108  AN    EXPOSITION   OF   THE 

inter-state  commerce;  nor  pass  laws  imposing  a  tax  upon 
passengers,  either  foreigners  or  citizens,  coming  into  their 
ports,  either  in  foreign  vessels  or  vessels  of  the  United 
States,  from  foreign  nations  or  the  other  states  of  the 
Union  ;  nor  can  they  impose  a  license  tax,  specially  upon 
venders  of  products  which  are  not  the  growth,  produce, 
or  manufacture  of  the  state  requiring  such  license ;  that 
is,  they  cannot  impose  on  persons  or  products  from  other 
states  for  sale  or  use,  within  their  limits,  more  onerous 
burdens  than  are  imposed  on  their  own.  In  fact,  there 
must  be  no  discrimination  against  the  persons  or  products 
of  other  states,  and  in  favor  of  their  own ;  such  state 
laws  are  unconstitutional  and  void,  being,  in  their  nature, 
regulations  of  commerce.  The  states,  therefore,  cannot 
tax  the  one  any  more  than  the  other.  Nor  can  they 
require  an  importer  to  take  out  a  license  and  pay  there- 
for before  selling  a  package  of  imported  goods.  In  a 
word,  they  cannot  impose  a  tax  upon  any  interest  or  sub- 
ject of  commerce,  or  enact  a  license  fee  from  parties 
engaged  in  commercial  pursuits,  or  tax  messages  sent  out 
of  their  limits  by  telegraph  companies,  or  create  an  im- 
pediment to  the  free  navigation  of  public  waters,  or  pre- 
scribe conditions  in  accordance  with  which  commerce  in 
particular  articles  or  between  particular  places  shall  be 
carried  on.  Any  tax  imposed  by  a  state  which  in  effect 
is  a  regulation  of  commerce,  either  foreign  or  inter-state, 
is  void  on  that  account. 

148.  But  they  may  impose  a  tax  on  brokers  dealing 
in  foreign  exchange,  and  also  a  tax  on  legacies  payable 


CONSTITUTION   OF    THE    UNITED    STATES.  109 

to  aliens.  And  after  the  introduction  of  imported  goods 
or  imported  liquors  into  a  state,  and  the  original  pack- 
ages are  broken  up  for  use  or  retail  by  the  importer,  or 
by  a  purchaser  from  him,  even  though  still  in  the  origi- 
nal packages,  then  they  become  subject  to  the  laws  of  the 
state,  and  may  be  taxed  for  state  purposes,  and  the  sale- 
regulated  by  state  laws. 

149.  The  power  of  Congress  to  regulate  commerce 
extends  to  the  Indian  tribes,  no  matter  whether  they 
live  within  or  without  the  boundaries  of  particular 
states.  In  the  exercise  of  this  power  Congress  may 
prohibit  all  intercourse  with  them,  except  under  a 
license.  The  Indian  tribes  are  not  regarded  as 
foreign  nations  in  the  sense  of  the  Constitution,  and 
as  such  entitled  to  sue  in  the  courts  of  the  United 
States ;  but  as  domestic  dependent  nations. 

Naturalization  and  Bankruptcy. 

150.  The  next  power  intrusted  to  Congress  is,  to* 
establish  a  uniform  rule  of  naturalization ;  and  uni- 
form laws  on  the  subject  of  bankruptcies  throughout 
the  United  States. 

151.  Naturalization  is  the  investing  of  foreigners 
with  the  privileges  of  native  citizens.  The  rule  for 
doing  this  should  be  uniform,  because  the  citizens  of 
one  state  are  entitled  to  all  the  rights  of  citizenship 
in  every  other  state.     Hence,  if  the  several  states 

10 


i- 


110  AN    EXPOSITION    OF    THE 

could  adopt  dissimilar  rules,  it  would  follow  that  any 
one  state  could  render  nugatory  the  rules  of  all  the 
rest.  For  by  naturalizing  aliens  upon  easy  condi- 
tions, it  would  enable  them  to  pass  into  the  other 
states  and  enjoy  all  the  rights  of  citizensnip,  in  spite 
of  their  policy  and  laws.  It  was  to  guard  against 
an  anomaly  like  this  that  the  power  was  confided  to 
Congress  of  establishing  a  uniform  rule  of  naturaliza- 
tion throughout  the  United  States,  and  this  power 
must  necessarily  be  exclusive. 

152.  But  in  the  absence  of  naturalization,  under  our 
two-fold  form  of  government,  state  and  federal,  an  alien 
may,  by  the  law  of  a  particular  state,  be  clothed  with  the 
essential  prerogatives  of  citizenship.  He  may,  for  in- 
stance, be  clothed  with  the  right  to  hold  real  estate  and 
to  exercise  the  elective  franchise.  The  right  to  vote  does 
not  come  from  the  United  States,  but  from  the  states 
themselves.  If  they  choose  to  give  an  alien  this  right, 
they  may  do  so.  In  point  of  fact,  many  of  the  states 
have  done  so.  Thus,  without  naturalization,  the  states 
may  confer  on  foreigners,  the  right  to  hold  real  estate, 
and  to  vote  at  their  elections.  But  notwithstanding  these 
rio-hts  they  would  not  be  citizens  in  the  sense  of  the  Con- 
stitution of  the  United  States,  nor  entitled  to  sue  as  such 
in  its  courts,  nor  entitled  to  the  privileges  and  immu- 
nities of  citizens  in  the  other  states. 

153.  The  rule  of  naturalization,  actually  established  by 
Congress,  requires  a  previous  residence  of  five  years 
before  an  alien  can  become  a  citizen  of  the  United  States 


CONSTITUTION   OF   THE    UNITED   STATES.  Ill 

The  steps  he  must  take,  in  order  to  be  clothed  with 
this  character,  are  few  and  simple.  He  must  first 
declare,  on  oath  or  affirmation,  before  a  state  or 
United  States  court,  his  intention  to  become  a  citizer 
of  the  United  States,  and  to  renounce  all  allegiance  to 
the  government  of  which  he  is  at  the  time  a  subject 
This  declaration  must  be  made  at  least  two  years  before 
his  application  for  admission  as  a  citizen.  When  this 
latter  application  is  made  he  must  declare,  on  oath  or 
affirmation,  that  he  will  support  the  Constitution  of 
the  United  States,  and  that  he  doth  renounce  and 
abjure  all  allegiance  and  fidelity  to  every  foreign 
prince  or  state ;  and  in  case  he  shall  have  borne 
any  hereditary  title,  or  have  been  of  any  of  the 
orders  of  nobility  in  the  kingdom  or  state  from  which 
he  came,  he  must  make  an  express  renunciation  of 
such  title  or  order  of  nobility. 

154.  As  we  have  before  remarked,  he  must  have 
resided  in  the  United  States  five  years  at  least  prior 
to  his  application,  and  in  the  state  or  territory  where 
he  then  resides,  at  least  one  year,  and  during  that 
time  have  behaved  as  a  man  of  good  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the 
United  States,  and  well-disposed  to  the  gsod  order 
and  happiness  of  the  same.  His  residence  and  good 
moral  character  must  be  proved  in  court  by  the 
testimony  of  witnesses  ;  the  oath  of  the  applicant 
being  in  no  case  allowed  to  prove  his  residence. 
155.  Congress,   by    the    act   of   July    27,    1868,    for- 


112  AN   EXPOSITION    OF   TIIE 

mally  committed  the  government  of  the  United  States 
to  the  support  of  the  doctrine  of  expatriation,  in  op- 
position to  the  English  common  law  principle  that  alle- 
giance is  intrinsic  and  perpetual.  In  that  act  Con- 
gress has  assumed  and  declared  that  the  right  of  ex- 
patriation is  a  natural  and  inherent  right  of  all  people, 
indispensable  to  the  enjoyment  of  the  rights  of  life, 
liberty,  and  the  pursuit  of  happiness;  and  declared 
inconsistent  with  the  fundamental  principles  of  the 
government  any  declaration,  instruction,  opinion,  order 
or  decision  of  any  officers  thereof  which  denies,  re- 
stricts, impairs  or  questions  the  right  of  expatriation; 
and  moreover,  that  the  naturalized  citizen,  while  in 
foreign  states,  is  entitled  to,  and  shall  receive,  the  same 
protection  of  person  and  property  that  is  accorded  to 
the  native-born  citizen  in  the  same  situation  and  cir- 
cumstances. 

Bankrupt  Laws, 

156.  A  bankrupt  law  may  be  defined  as  a  law 
which  discharges  a  debtor  from  the  legal  obligation 
to  pay  his  debts  in  such  cases  and  upon  such  con- 
dition as  the  law  may  specify — the  usual  condition 
being  that  he  shall  surrender  all  his  property  to 
commissioners  for  the  benefit  of  his  creditors.  The 
English  bankrupt  laws  relate  to  merchants  and 
traders ;    but  such  laws    may    equally    be    made    to 


CONSTITUTION   OF   THE    UNITED   STATES.  113 

embrace    every    description    of   debtors,    as   the   bank- 
rupt laws  of  the  United  States  have  done. 

157.  The  power  to  pass  uniform  laws  on  the 
subject  of  bankruptcies,  Congress  has,  for  the  most 
part,  permitted  to  lie  dormant.  An  act  of  this  kind 
was  passed  in  1801,  but  was  repealed  two  years 
subsequently ;  and  the  act  of  1842  was  repealed  at 
the  very  next  session  of  Congress.  Meanwhile, 
several  of  the  states  have  passed  laws  of  this  charac- 
ter— it  being  held  that  so  long  as  Congress  abstains 
from  exercising  the  power  it  possesses  over  the 
subject,  the  states  may  exercise  it,  but  with  this 
limitation,  namely,  that  the  laws  passed  by  the  states 
cannot  discharge  contracts  made  prior  to  their  pas- 
sage, and  only  such  contracts  as  are  made  within 
their  respective  states  and  between  citizens  of  the 
same.  When  Congress,  too,  exercises  its  power  and 
passes  a  uniform  bankrupt  law,  the  laws  of  the 
several  states  upon  the  same  subject  yield  to  it  and 
become  inoperative.  Accordingly,  the  act  of  March 
2,  1867,  generally  known  as  the  Bankrupt  Act,  sus- 
pended, ipso  facto,  all  action  upon  future  cases  arising 
under  the  insolvency  laws  of  the  states,  where  such 
laws  acted  upon  the  same  subject-matter  and  the  same 
persons  as  the  act  of  Congress. 
10*  H 


114  AN    EXPOSITION   OF   THE 


Coinage  of  Money,  &c. 

158.  Congress  have  power  to  coin  money,  regulate 
the  value  thereof,  and  of  foreign  coin,  and  fix  the 
Etaudard  of  weights  and  measures. 

159.  Uniformity  in  the  value  of  money  is  vastly 
important  in  a  country  like  ours,  composed  of  a  great 
number  of  states  whose  intercourse  should  be  freed, 
as  much  as  possible,  from  all  embarrassment  arising 
from  an  uncertain  and  variable  currency.  Hence  the 
propriety  of  giving  to  Congress  the  power  to  secure 
such  uniformity  by  coining  money  and  regulating  its 
value,  as  well  as  the  value  of  foreign  coin.  From  the 
power  of  coining  and  regulating  the  metallic  currency 
Congress  has,  in  part,  derived  the  right  of  issuing 
paper,  to  circulate  as  its  representative.  And  after 
the  breaking  out  of  the  civil  war  in  1861,  Congress, 
by  what  are  familiarly  known  as  the  legal  tender 
acts,  made  its  paper  issues  a  legal  tender  in  payment 
of  private  debts,  as  well  as  of  all  public  dues  except 
duties  on  imports  and  interest  on  the  public  debt.  In 
other  words,  Congress  made  its  paper  currency,  in  the 
payment  of  private  debts  and  most  of  the  public  dues, 
equivalent  to  the  metallic  currency,  however  great  the 
nominal  disproportion.  And  the  Supreme  Court  has  held 
that  these  so-called  legal  tender  acts  are  constitutional 
both  in  their  application  to  pre-existing  and  subsequently 


CONSTITUTION   OF   THE   UNITED   STATES.  115 

contracted  debts;  and  whether  passed  during  the  exigen- 
cies of  war  or  in  time  of  peace.  They  do  not  apply, 
however,  to  involuntary  contributions  exacted  by  a  state, 
but  only  to  obligations  for  the  payment  of  money  founded 
on  contracts,  express  or  implied.  Hence  a  state  statute 
requiring  the  payment  of  taxes  in  gold  and  silver  .coin 
is  valid ;  the  legal  tender  act  having  no  reference  to  taxes 
imposed  by  state  authority. 

160.  Money  is  coined  at  the  Mint  of  the  United 
States,  which  was  established  in  1792,  at  Philadelphia, 
where  it  has  since  been  continued.  There  have  been 
established  also,  at  different  times,  branch  mints  in 
North  Carolina,  Georgia,  Louisiana,  and  California. 

.161.  The  power  to  fix  the  standard  of  weights  and 
measures  Congress  has  not  yet  thought  proper  to 
exercise.  Accordingly  the  several  states,  in  the 
absence  of  a  uniform  law  upon  the  subject,  have 
continued  to  use  either  the  standards  which  existed 
when  the  Constitution  was  adopted,  or  other  stand- 
ards which  the  convenience  of  commerce  has  led 
them  to  adopt  since.  But  by  the  act  of  July  28, 
1873,  Congress  made  it  lawful  throughout  the  United 
States  to  employ  the  weights  and  measures  of  the 
metric  system;  and  no  contract  or  dealing,  or  plead- 
ing in  any  court,  can  be  deemed  invalid  or  liable  to 
objection,  because  the  weights  or  measures  expressed 
or  referred  to  therein  are  weights  or  measures  of  that 
system. 


116  AN   EXPOSITION    OF    THE 


Power  to  punish  Counterfeiting. 

162.  To  render  more  efficient  the  powers  to  coin 
and  borrow  money,  Congress  are  empowered  to  pro- 
vide for  the  punishment  of  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States. 

163.  Congress  accordingly  has  passed  several  acts, 
imposing  very  severe  penalties  upon  those  who  pro- 
duce a  false  representation  of  the  coin  of  the  United 
States.  At  one  time  it  was  thought,  that  Congress 
could  not  punish  for  the  circulation  of  such  coin, 
though  the  states  might;  that  is,  the  power  of  Congress 
was  supposed  to  be  confined  to  the  punishing  of  the 
offence  of  making  counterfeit  coin,  the  states  alone  pos- 
sessing the  power  of  punishing  for  passing  it.  But  the 
decision  of  the  Supreme  Court  was  otherwise,  and  Con- 
gress by  appropriate  legislation  has  provided  for  the 
punishment  as  well  for  passing  as  counterfeiting  the 
coins  and  securities  of  the  United  States.  And  there 
seems  no  good  reason  why,  on  the  other  hand,  the  states 
may  not  concurrently  provide  for  the  punishment  of 
counterfeiting ;  such  legislation  being  in  aid  of  the  power 
of  Congress. 

Post-offices  and  Post-roads. 

164.  Congress  have  power  to  establish  post-offices 
and  post-roads. 


CONSTITUTION    OF   THE   UNITED   STATES.  117 

165.  In  the  first  year  of  Washington's  administra- 
tion there  were  but  twenty-five  post-offices  in  all  the 
United  States.  In  the  following  year  the  income  of 
the  Post-office  Department  did  not  reach  thirty-eight 
thousand  dollars.  Its  income  and  expenditure  are 
now  reckoned  by  millions,  and  there  is  scarcely  any 
portion  of  our  immense  territory,  however  remote, 
that  is  not  visited  by  the  mail.  Intercourse  between 
all  parts  of  the  country  is  thus  facilitated,  knowledge 
diffused,  and  the  operations  of  government  carried  on 
with  promptitude  and  regularity. 

166.  In  the  exercise  of  the  power  to  establish 
post-offices  and  post-roads,  Congress  have  felt  them- 
selves authorized  to  create  the  whole  system  appro- 
priate to  a  post-office  establishment.  They  have 
passed  laws  for  the  punishment  of  those  who  steal 
letters  from  the  post-office,  or  rob  the  mail ;  they 
have  purchased  or  erected  buildings  for  post-offices, 
and,  in  some  instances,  laid  out  and  made  roads  for 
the  carrying  of  the  mail,  though  generally  they  have 
merely  designated  or  selected  as  post-roads  such 
roads  as  already  existed.  By  an  Act  of  Congress, 
passed  in  1853,  all  railroads  in  the  United  States 
have  been  declared  post-roads. 

167.  The  general  control  and  supervision  of  the 
Post-office  establishment  are  confided  to  the  Post- 
master-General, who  is  a  member  of  the  President's 


118  AN    EXPOSITION   OF  THE 

Cabinet.  He  is  authorized  to  establish  post-offices, 
appoint  all  postmasters  whose  annual  commissions 
are  less  than  a  thousand  dollars,  make  contracts  for 
the  carriage  of  the  mails,  and  direct  generally  the 
operations  and  affairs  of  the  department  over  which 
he  presides. 

Science  and  Useful  Arts. 

168.  Congress  have  power  to  promote  the  progress 
of  science  and  the  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the  exclusive 
right  to  their  respective  writings  and  discoveries. 

169.  In  the  United  States  an  author  has  no  exclu- 
sive property  in  a  published  work,  except  under 
some  act  of  Congress.  Such  property  is  not  recog- 
nised by  the  common  law.  In  pursuance  of  the 
power  confided  to  them  by  the  Constitution,  Con- 
gress have  passed  laws  giving  to  authors,  who  are 
citizens  of  the  United  States  or  resident  therein, 
the  exclusive  right  to  publish  their  works  for  a  term 
of  twenty-eight  years,  with  the  privilege  of  enjoying 
the  same  right  for  an  additional  period  of  fourteen 
years. 

Copy  rig  Jits. 

170.  This  exclusive  right  of  authors  is  called  a 
copyright,  and  is  granted  not  only  to  the  authors  of 
books,  but  to  the  authors  of  maps,  charts,  and  mu- 


CONSTITUTION   OF   THE   UNITED   STATES.  119 

sical  compositions,  and  to  the  inventors  and  designers 
of  prints,  cuts,  and  engravings.  If  an  author,  in- 
ventor, designer,  or  engraver  should  not  be  living  at  the 
expiration  of  the  first  period  of  twenty-eight  years,  the 
privilege  of  renewal  for  the  further  period  of  fourteen 
years,  survives  to  his  widow  and  children. 

Patents. 

171.  The  inventors  or  discoverers  of  any  new  and 
useful  art,  machine,  manufacture,  or  composition  of 
matter,  or  any  new  and  useful  improvement  on  any 
art,  machine,  manufacture,  or  composition  of  matter, 
not  known  or  used  by  others  before  their  discovery 
or  invention  thereof,  and  which  has  not  been  aban- 
doned to  the  public  or  been  in  public  use,  or  on  sale, 
for  more  than  two  years  prior  to  the  application  for 
a  patent,  are  entitled  to  the  exclusive  right  of  manu- 
facturing and  selling  such  invention  for  the  period 
of  fourteen  years.  This  privilege  is  termed  a  patent- 
right,  and  may,  when  the  inventor,  without  neglect 
or  fault  on  his  part,  has  not  been  adequately  remu- 
nerated, be  extended  for  an  additional  period  of  seven 
years. 

172.  As  patents  are  granted  "to  promote  the  pro- 
gress of  science  and  the  useful  arts,"  the  courts  give 
them  a  liberal  construction.  Moreover,  the  power  of 
Congress  over  them  is  plenary  ;  so  that,  if  they  do  not 


J  20  AN   EXPOSITION   OF   THE 

take  away  the  rights  of  property  in  existing  patents, 
they  may  modify  them;  they  may  make  special  grants 
and  special  extensions;  and  they  may  also  give  a  ret- 
rospective effect  to  their  grants. 

Piracies  and  Felonies. 

173.  To  Congress  is  intrusted  the  power  to  define 
and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations. 

174.  Piracy  is  a  crime  well  known  to  the  law  of 
nations,  and  is  robbery  or  forcible  depredations  upon 
the  sea,  animo  furandi,  in  the  spirit  and  intention 
of  universal  hostility.  The  object  of  the  Constitution 
is  not,  therefore,  to  authorize  Congress  to  define  a 
crime  already  well  and  universally  defined,  but  to 
empower  them  to  enumerate  such  crimes  as  shall  be 
deemed  piracies.  Congress  have  accordingly  de- 
clared the  slave  trade  piracy,  as  well  as  every  offence 
committed  at  sea,  which  would  be  punishable  with 
death  if  committed  on  land. 

175.  JFelonj,  in  a  general  sense,  is  every  descrip- 
tion of  crime  which  the  common  law  punishes  either 
with  death  or  forfeiture  of  lands  and  goods.  It  is  a 
term,  as  has  been  justly  remarked,  of  loose  significa- 
tion in  the  common  law,  and  more  vague  still  in  the 
law  of  the  sea.  Hence  the  propriety  of  giving  Con- 
gress the  power  to  define  as  well  as  to  punish  it.    By 


CONSTITUTION   OF   THE   UNITED    STATES.  121 

the  "'high  seas"  is  meant  the  unenclosed  waters  of 
the  ocean  beyond  low  water  mark. 

176.  By  the  law  of  nations  is  meant  that  system 
of  principles  and  usages  which  regulates  the  inter- 
course of  nations.  Among  the  more  obvious  offences 
against  that  law  may  be  mentioned  the  violation  of 
passports,  infringement  of  the  rights  of  ambassadors, 
and  the  infraction  of  treaties.  Under  the  Confede- 
ration Congress  possessed  no  power  to  punish  such 
offences,  and  were  compelled  to  appeal  to  the  states 
to  provide  adequate  and  exemplary  punishment  in  all 
that  class  of  cases.  As  the  general  government 
represents  the  country  in  its  external  relations,  and 
is  bound  by  the  law  of  nations,  it  is  wisely  intrusted 
with  the  power  to  define  offences  against  that  law, 
and  punish  its  citizens  for  committing  them. 

War. 

177.  Congress  possess  the  power  to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water. 

178.  In  the  ancient  republics  of  Greece  the  right 
of  declaring  war  resided  with  the  assemblies  of  the 
people,  who  exercised  a  large  portion  of  the  sovereign 
power.  In  the  aristocratic  republic  of  Carthage  it 
was  confided  to  the  senate ;  in  Rome  to  the  comitia, 
or  assembly  of  the  people.     In  the  monarchies  of 

11 


122  AN   EXPOSITION   OF   THE 

modern  Europe  the  king  alone  declares  war;  but 
this  prerogative  is  greatly  modified  in  England, 
where  the  crown  may  indeed  declare  war,  but  cannot 
raise  a  dollar  with  which  to  carry  it  on  without  the 
consent  of  Parliament.  The  result  is,  that  the  real 
power  resides  in  Parliament,  because  the  crown  never 
would  venture  upon  a  declaration  of  war  without 
being  sure  of  their  support  and  approval.  For  why 
declare  war  in  opposition  to  the  views  of  Parliament, 
when  it  possesses  the  power  to  nullify  the  declaration 
by  withholding  the  supplies  necessary  to  give  it 
effect  ? 

179.  The  Constitution  of  the  United  States  has 
not  thus  separated  the  real  and  nominal  authority, 
but  has  given  directly  to  Congress  both  the  power  to 
declare  war,  and,  as  we  shall  presently  see,  the  power 
to  provide  the  means  to  carry  it  on.  The  check  to  a 
wanton  and  unnecessary  exercise  of  this  power  is 
two-fold  :  first,  the  virtue  of  Congress,  and,  secondly, 
their  responsibility  to  the  people.  With  one-third 
of  the  Senate  and  the  whole  of  the  House  of  Repre- 
sentatives to  be  elected  every  second  year,  it  may 
well  be  presumed  that  Congress  will  not  declare  war 
except  upon  grounds  that  will  justify  them  before 
the  tribunal  of  public  opinion. 

180.  The  power  to  declare  war  is  exclusive  in  Con- 
gress, and  necessarily  involves  the  power  to  prosecute 
it  by  all  means  and  in  all  modes  known  and  recognized 


CONSTITUTION   OF   THE   UNITED   STATES.  123 

iu  legitimate  warfare.  Hence  it  includes  the  right  to 
seize  and  confiscate  the  property  of  the  enemy,  or  any 
property  which  the  enemy  can  use,  or  which  the  adher- 
ents of  the  enemy  have  the  power  of  devoting  to  the 
enemy's  use,  whether  belonging  to  an  alien  or  friend,  and 
also  to  acquire  territory,  either  by  conquest  or  by  treaty. 
And  when  the  authority  of  the  United  States  is  re- 
sisted by  combinations  of  its  citizens  too  strong  for 
the  civil  arm  of  the  government,  it  may  assume  the 
attitude  of  a  belligerent,  without  relinquishing  its  char- 
acter as  a  sovereign,  and  may  enforce  its  rights  in 
both  capacities.  But  it  cannot,  in  prosecuting  its 
belligerent  and  sovereign  rights  against  a  rebellion 
of  its  citizens,  create  a  military  department  out  of  one 
or  more  states  not  included  in  the  circle  of  rebellion, 
and  authorize  the  military  commander  within  such  de- 
partment to  arrest  a  citizen  of  such  state,  and  try 
him  before  a  military  commission  for  an  alleged  crime. 
The  Constitution  secures  to  the  citizen  a  trial  by  jury, 
and  in  states  which  have  upheld  the  government,  and 
where  the  courts  are  open  and  their  process  unob- 
structed, he  cannot  be  held  to  answer  for  a  capital  or 
other  infamous  crime,  unless  on  presentment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger,  nor  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law. 
And  due  process  of  law  in  such  a  case  does  not  mean 
a  court-martial. 


1*24  AN   EXPOSITION   OF   THE 


Letters  of  Marque  and  Reprisal. 

181.  Letters  of  marque  and  reprisal  are  commis- 
sions or  letters  which  authorize  the  persons  to  whom 
they  are  granted  to  capture  the  property  of  a  foreign 
state,  particularly  its  merchant  vessels.  They  are 
usually  granted  in  a  time  of  war,  and  as  a  means  to 
distress  the  enemy.  They  are  also  occasionally 
granted  in  peace,  as,  for  example,  when  a  nation  has 
been  injured  in  its  own  rights,  or  in  those  of  its  sub- 
jects, without  being  able  to  obtain  justice  from  the 
tribunals  or  sovereign  of  the  country  against  which 
they  are  issued. 

182.  Before  private  letters  of  marque  are  granted, 
proof  must  be  produced  of  the  amount  of  injury 
which  has  been  sustained,  which  is  set  forth  in  the 
letters,  in  order  that  the  surplus  of  property  captured 
may,  after  the  payment  of  damages,  interest,  and 
expenses,  be  restored  to  the  owners.  Hence  all  vessels 
seized  under  those  letters  must  be  brought  into  some 
port,  and  condemned  and  sold  by  the  order  of  a 
competent  court  in  order  that  the  surplus,  if  any, 
may  be  thus  restored. 

183.  The  general  principles  relating  to  land  and 
maritime  captures  are  defined  by  the  law  of  nations  ; 
but  the  rules  respecting  the  division  of  the  captured 
property,  and  many  other  details,  each  government 


CONSTITUTION   OF   THE   UNITED   STATES.  125 

regulates  for  itself.  Congress,  as  an  encouragement 
and  reward  of  valor,  have  established  a  rule  that 
when  a  captured  ship  is  of  equal  or  superior  force  to 
the  ship  making  the  capture,  she  shall  be  the  sole 
property  of  the  captors.  In  all  other  cases  the  pro- 
perty is  divided  equally  between  the  captors  and  the 
United  States. 

The  Army. 

184.  As  we  have  already  remarked,  the"  power  is 
confided  to  Congress  to  raise  and  support  armies ; 
but  no  appropriation  of  money  to  that  use  can  be  for 
a  longer  term  than  two  years. 

185.  The  appropriation  is  confined  to  two  years,  in 
order  to  prevent  the  keeping  on  foot  a  standing  army 
without  the  continued  consent  of  the  Representatives 
of  the  people.  The  actual  practice  is,  to  make  the 
appropriations  not  even  for  two  years,  but  only  for 
the  current  year. 

186.  There  is  no  restriction  upon  the   power  of 

Congress  in  raising  armies   as  to  the  persons  they 

will   enlist.     Hence   they  may  enlist  minors  in  the 

army  or  navy,  without  the  consent  of  their  parents. 

Public   policy  requires   that    a   minor  should  be  at 

liberty  to  enter  into  a  contract  to  serve  the  state, 

whenever  such  contract  is  not   positively  forbidden 

by  the  state  itself.     But  an  Act  of  Congress  directs 
11* 


126  AN    EXPOSITION   OF   THE 

that  no  person  under  the  age  of  eighteen  shall  be 
mustered  into  the  United  States  service. 


The  Navy. 

187.  Congress  are  also  empowered  to  provide  and 
maintain  a  navy. 

188.  Congress  possessed  the  same  power  under  the 
Confederation,  but  were  never  able,  from  want  of 
means,  to  build  and  equip  a  navy.  It  was  not  until 
some  years  after  the  adoption  of  the  Constitution, 
and  the  organization  of  the  government,  that  the 
foundation  of  a  navy  was  laid.  In  1797  three  frigates 
were  completed,  and  were  named  the  Constitution, 
the  United  States,  and  the  Constellation.  These 
vessels  were  the  germ,  as  it  were,  of  our  present 
naval  force. 

Government  of  the  Army  and  Navy, 

189.  With  the  power  to  raise  armies  and  provide 
a  navy  is  associated  the  necessary  power  to  make  rules 
for  the  government  and  regulation  of  the  land  and 
naval  forces. 

The  Militia. 

190.  Congress  have  also  the  authority  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions. 


CONSTITUTION   OF   THE   UNITED   STATES.  127 

191.  By  militia  are  meant  that  body  of  citizens  in 
a  state  who  are  enrolled  and  trained  to  military  exer- 
cises. They  are  a  very  different  force  from  a  stand- 
ing army — being  simply  citizens  who  are  liable  to  do 
military  duty,  who  are  regularly  enrolled  for  that 
purpose,  and  who  assemble  occasionally  to  be  taught 
military  duties. 

192.  By  an  Act  of  Congress,  passed  in  1795,  the 
President  is  authorized,  in  certain  exigencies,  such 
as  invasion,  or  imminent  danger  of  it,  to  call  forth 
such  number  of  the  militia  most  convenient  to  the 
scene  of  action  as  he  may  judge  necessary.  It 
belongs  to  him  exclusively  to  judge  whether  the 
exigency  has  actually  arisen,  and  his  decision  is 
conclusive  upon  the  state  authorities. 

193.  When  the  militia  are  called  into  the  service 
of  the  United  States,  and  are  mustered  at  the  place 
of  rendezvous,  they  cease  to  be  state  militia,  and 
become  national  militia ;  and  from  that  time  they  are 
paid  by  the  United  States,  and  are  subject  to  the 
articles  of  war.  If  they  neglect  or  refuse  to  march 
to  the  place  of  rendezvous  they  may  be  tried  and 
fined  by  a  court-martial,  constituted  under  the  autho- 
rity of  the  United  States,  but  composed  of  militia 
officers  only.  The  states  may  also  pass  laws  pro* 
viding  for  the  trial  of  such  delinquents  by  court- 
martial.  And  they  may  employ  their  own  militia,  not 
called  into  the  service  of  the  Union,  to  aid  the  govern- 


128  AN    EXPOSITION   OF   THE 

ment  in  executing  the  laws,  in  suppressing  insurrec- 
tions, and  in  repelling  invasions. 

194.  Congress  is  not  only  authorized  to  provide 
for  calling  forth  the  militia,  but  also  to  provide  for 
organizing,  arming,  and  disciplining  them,  and  for 
governing  such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States,  reserving  to  the 
states  respectively  the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia  according  to 
the  discipline  prescribed  by  Congress. 

195.  The  object  of  this  power  is  to  secure  uni- 
formity in  the  organization  and  discipline  of  the 
militia,  and,  as  a  consequence,  efficiency  in  case 
of  actual  service.  By  an  Act  passed  in  1820,  Con- 
gress provided  that  the  system  of  discipline  and  field 
exercise,  which  is  observed  by  the  regular  army, 
should  also  be  observed  by  the  militia. 

Seat  of  Government. 

196.  Congress  exercise  exclusive  legislation,  in  all 
cases  whatever,  over  such  district  (not  exceeding  ten 
miles  square)  as  may,  by  cession  of  particular  states, 
and  the  acceptance  of  Congress,  become  the  seat  of 
the  government  of  the  United  States ;  and  they  also 
exercise  like  authority  over  all  places  purchased  by 
the  consent  of  the  legislature  of  the  state  in  which 
the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dockyards,  and  other  needful  buildings. 


CONSTITUTION   OF   THE   UNITED   STATES.  129 

197.  The  seat  of  government  in  the  first  instance 
was  New  York."  It  was  then  removed  to  Philadel- 
phia, and,  finally,  in  1800,  to  Washington,  a  district 
of  ten  miles  square,  called  the  District  of  Columbia, 
having  been  ceded  to  the  United  States  by  Maryland 
and  Virginia.  Having  exclusive  jurisdiction  within 
the  District,  Congress  possess  the  means  of  protecting 
themselves  from  insult  or  interruption,  without  de- 
pendence on  the  state  authorities,  who  might,  in  par- 
ticular exigencies,  be  unable  or  unwilling  to  defend 
them. 

198.  As  the  District  of  Columbia  is  not  a  state  in 
the  sense  of  the  Constitution,  the  citizens  cannot 
send  Representatives  to  Congress,  nor  vote  for  Presi- 
dent or  Vice-President  of  the  United  States.  The  whole 
body  of  Congress  is  its  legitimate  government,  and  to 
Congress  it  must  look  for  needful  and  necessary  legisla- 
tion. 

Jurisdiction  over  Forts,  &c. 

199.  If  a  place  is  purchased  in  any  state,  with  the 
consent  of  its  legislature,  for  the  erection  of  a  fort, 
magazine,  arsenal,  dockyard,  or  other  needful  build- 
ings, then  Congress  possesses  exclusive  jurisdiction 
over  such  place,  and  neither  civil  nor  criminal  pro- 
cess, issued  under  the  authority  of  the  state,  can  be 
executed  therein,  unless  the  state  expressly  reserves 

I 


130  AN    EXPOSITION   OF   THE 

that  privilege.  Moreover,  the  inhabitants  of  such 
place  cease  to  be  inhabitants  of  the  state,  and  cannot 
exercise  any  civil  or  political  rights  under  the  laws 
of  the  state. 

200.  On  the  other  hand,  if  a  purchase  of  territory 
is  made  by  the  United  States  in  any  state  for  public 
purposes,  without  the  consent  of  its  legislature,  then 
the  jurisdiction  of  the  state  over  such  territory  re- 
mains full  and  complete.  It  has  not  the  right,  how- 
ever, to  tax  such  territory. 

General  Power  of  Congress. 

201.  Had  the  Constitution  made  no  provision  to 
that  effect,  it  would  have  been  implied  that  Congress 
might  employ  the  means  necessary  to  execute  the 
powers  with  which  they  were  invested.  But  it  has 
not  been  left  to  implication :  the  Constitution  ex- 
pressl}7  authorizes  Congress  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers,  and  all  other  powers 
vested  by  the  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

202.  Congress  has  no  power  under  this  clause  of 
the  Constitution,  except  to  provide  the  means  of 
executing  the  powers  vested  in  the  government  of  the 
United  States,  or  in  any  department  or  officer 
thereof.  If  the  means  be  appropriate  to  this  end,  if 
they  are  not  prohibited,  and  are  consistent  with  the 


CONSTITUTION   OF   THE   UNITED   STATES.  131 

letter  and  spirit  of  the  Constitution,  then  they  are 
authorized. 

Concurrent  powers  of  Legislation  in  the  States. 

203.  It  is  important  to  observe  that  the  powers 
which  the  Constitution  confides  to  Congress  are  not 
necessarily  exclusive.  It  is  only  in  cases  where  the 
Constitution,  in  express  terms,  grants  an  exclusive 
authority  to  Congress,  or  the  nature  of  the  authority 
requires  that  it  should  be  exclusively  exercised  by 
Congress,  that  the  subject  is  taken  from  the  state 
legislatures. 

204.  It  is  believed  that  there  are  only  three  cases 
where  the  authority  of  Congress  is  exclusive :  First, 
when  it  is  made  exclusive  in  express  terms  ;  secondly, 
when  a  power  is  confided  to  Congress,  and  the  states 
are  prohibited  from  exercising  a  like  power;  thirdly, 
when  a  power  is  granted  to  Congress  to  which  a 
similar  power  in  the  states  would  be  absolutely  and 
totally  contradictory  and  repugnant. 

205.  In  all  other  cases  the  states  retain  concurrent 
authority  with  Congress,  subject,  however,  to  two 
(imitations.  One  is,  that  if  the  state  legislation  con- 
flicts with  that  of  Congress,  then  it  is  void,  because 
the  laws  of  the  United  States  made  in  pursuance  of 
the  Constitution  are  supreme.  The  other  is,  that 
where,  from  the  nature  of  the  power,  its  exercise  at 


132  AN    EXPOSITION   OF   THE 

the  same  time  by  both  Congress  and  the  states  "would 
be  inconsistent,  then  the  legislation  of  Congress,  in 
pursuance  of  that  power,  absolutely  suspends  the 
legislative  power  of  the  states  over  the  same  subject. 
Thus,  Congress  are  authorized  to  establish  uniform 
laws  on  the  subject  of  bankruptcy,  but  the  states  may 
pass  bankrupt  laws,  provided  there  be  no  act  of 
Congress  in  force  establishing  a  uniform  law  on  that 
subject.  In  this  instance,  it  is  not  the  mere  existence 
of  the  power,  but  its  exercise,  which  is  incompatible 
with  the  exercise  of  the  same  power  by  the  states. 
When  Congress  passes  a  uniform  law,  the  partial 
laws  of  the  states  must  yield  to  it. 


CONSTITUTION   OF   THE    UNITED   STATES.  133 


POWERS  DENIED  TO  CONGEESS. 

206.  We  have  seen  in  the  preceding  pages  what 
Congress  may  do.  The  next  step  leads  us  to  con- 
sider what  they  may  not  do. 

The  Slave  Trade. 

207.  In  the  first  place,  the  migration  or  importa- 
tion of  such  persons  as  any  of  the  states  existing  at 
the  time  of  the  adoption  of  the  Constitution  should 
think  proper  to  admit,  were  not  to  be  prohibited  by 
the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight ;  but  a  tax  or  duty  might  be  im- 
posed on  such  importation  not  exceeding  ten  dollars 
for  each  person. 

208.  The  object  of  this  clause  was  to  prevent 
Congress  from  interdicting  the  slave  trade  prior  to 
the  year  1808.     At  the  time  the   Constitution   was 

[  framed,  there  was  a  strong  feeling  in  several  of  the 
states  in  favor  of  that  trade,  and  in  deference  to  that 
feeling  Congress  were  inhibited  to  abolish  it  prior  to 
the  year  above  named.  Congress,  however,  at  an 
early  day  prohibited  American  citizens  from  carrying 
on  the  traffic  between  foreign  countries;  and  they 
12 


134  AN    EXPOSITION   OF  THE 

passed  a  prospective  Act  in  1807,  prohibiting  the 
importation  of  slaves  into  the  United  States  after 
January  1,  1808.  As  the  penalties  of  this  Act  were 
not  sufficient  to  put  an  end  to  the  traffic,  another 
Act  was  passed  in  1820,  declaring  the  slave  trade 
piracy,  and  punishing  those  engaged  in  it  with  death. 

Habeas  Corpus. 

209.  The  privilege  of  the  writ  of  habeas  corpus 
cannot  be  suspended,  unless  when,  in  cases  of  rebel- 
lion or  invasion,  the  public  safety  may  require  it. 

210.  The  words  habeas  corpus  mean  "  that  you 
have  the  body,"  and  the  writ,  so  called,  is  directed 
to  the  person  charged  with  illegally  detaining  another 
in  custody,  commanding  him  to  produce  the  body  of 
the  prisoner,  and  make  known  the  cause  of  his  de- 
tention. If  no  sufficient  ground  of  detention  appears 
the  party  is  entitled  to  an  immediate  discharge.  The 
courts  of  the  United  States  issue  the  writ  of  habeas 
corpus  in  cases  falling  within  their  jurisdiction,  and  ; 
the  state  courts  possess  a  like  authority  in  cases 
falling  within  theirs ;  so  that  a  prompt  and  efficacious 
remedy  and  a  convenient  tribunal  are  provided  for 
every  case  of  illegal  restraint  of  a  man's  liberty. 

211.  Under  the  judiciary  act  of  1789,  the  justices 
of  the  Supreme  Court,  as  well  as  the  district  judges, 
have  power  to  grant  writs  of  habeas  corpus  for  the 


CONSTITUTION   OF   THE    UNITED   STATES.  135 

purpose  of  inquiry  into  the  cause  of  commitment;  pro- 
vided, however,  that  such  writs  shall  not  extend  to 
prisoners  in  jail,  unless  they  are  in  custody  under  or 
by  color  of  the  authority  of  the  United  States,  or  are 
committed  to  trial  before  some  court  of  the  same,  or 
unless  it  is  necessary  to  bring  them  into  court  to  tes- 
tify. It  will  be  observed,  therefore,  that  by  the  terms 
of  this  act,  no  judge  of  a  United  States  court  can 
issue  a  habeas  corpus  to  extend  to  a  prisoner  in  cus 
tody  under  sentence  or  execution  of  a  state  court, 
no  matter  whether  the  imprisonment  is  under  civil  or 
criminal  process,  except  for  the  single  purpose  of  using 
such  prisoner  as  a  witness.  By  subsequent  acts,  how- 
ever, the  power  of  the  justices  of  the  supreme  and 
district  courts  was  extended  to  cases  of  a  prisoner  or 
prisoners  in  jail  or  confinement,  committed  or  confined 
by  any  authority,  for  any  act  done  or  omitted  to  be 
done,  in  pursuance  of  a  law  of  the  United  States,  or 
any  order,  process,  or  decree  of  any  judge  or  court 
thereof;  and  to  cases  where  subjects  or  citizens  of  a 
foreign  state,  and  domiciled  therein,  are  committed, 
or  confined,  or  are  in  custody,  under  or  by  any  au- 
thority, or  law,  or  process  founded  therein,  of  the 
United  States,  or  of  any  one  of  them,  for  or  on  ac- 
count of  any  act  done  or  omitted  under  any  alleged 
right,  title,  authority,  privilege,  protection,  or  exemp- 
tion, set  up  or  claimed  under  the  commission,  or  order, 
or  sanction  of  any  foreign  state  or  sovereignty,  the 
validity  or  effect  whereof  depends  upon  the  law  of 


136  AN   EXPOSITION   OF   THE 

nations,  or  under  color  thereof;  and,  lastly,  to  cases 
where  any  person  is  restrained  of  liberty  in  violation 
of  the  Constitution,  or  of  any  treaty  or  law  of  the 
United  States. 

212.  It  is  only  in  the  foregoing  cases  that  the 
Federal  judiciary  has  jurisdiction  of  this  writ;  in  all 
other  cases  arising  under  the  specific  laws  of  the 
several  states  or  under  the  common  law,  the  party 
aggrieved  must  seek  his  remedy  in  the  appropriate 
state  court.  But  the  state  tribunals  have  no  right, 
through  the  writ  of  habeas  corpus,  to  inquire  into  the 
lawfulness  of  restraint  under  the  authority  of  the 
United  States  ;  they  may  indeed  issue  the  writ  when 
illegal  restraint  upon  liberty  is  alleged,  yet  when  it  is 
served  upon  the  Federal  officer,  having  the  prisoner  in 
charge,  and  his  return  shows  that  he  is  held  under 
Federal  authority,  the  state  court  can  proceed  no 
further  with  the  case.  Such  officer  is  not  bound  to 
obey  the  state  process,  except  so  far  as  to  make 
known  to  the  state  tribunal  the  authority  under 
which  the  prisoner  is  held. 

213.  In  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  that  the  government  should  have 
the  power  to  imprison  dangerous  persons  on  grounds 
that  might  not  be  sufficient  to  prevent  their  discharge 
should  they  or  others  for  them  apply  to  the  courts 
for  a  writ  of  habeas  corpus.  In  such  cases,  there- 
fore, Congress  may  suspend  the  privilege  of  the  writ ; 


CONSTITUTION   OF   THE   UNITED    STATES.  137 

the  judicial  interpretation  of  this  clause  of  the  Con- 
stitution being  that  the  President  has  not  the  power 
to  suspend  the  privilege  of  the  writ,  and  that  it  can 
only  be  done  by  Congress.  The  power  of  the  Presi- 
dent is  limited  to  executing  the  laws;  he  has  no  power 
to  suspend  them.  The  latter,  so  far  as  it  exists,  is  a 
legislative  function,  and  by  the  Constitution  belongs 
to  Congress.  We  may  add,  that  a  suspension  of  the 
privilege  of  the  writ,  does  not  suspend  the  writ  itself; 
the  wTrit  issues  as  a  matter  of  course:  on  its  return 
the  court  decides  whether  the  applicant  is  entitled  to 
proceed  further 

Attainder. 

214.  No  bill  of  attaiuder  or  ex  post  facto  law  shall 
be  passed. 

215.  The  English  Parliament  exercised,  until  a  very 
recent  period,  the  power  of  infiictiug  death  upon  a  per- 
son, and  confiscating  his  property  by  a  special  act,  with- 
out allowing  him  an  opportunity  to  defend  himself  before 
a  judicial  tribunal.  Such  special  act  is  called  a  bill  of 
attainder.  In  passing  it  Parliament  could  disregard  the 
rules  of  evidence  and  the  principles  of  justice,  and  con- 
demn a  man  to  death  from  mere  political  rancor,  hatred 
or  suspicion.  In  favorable  times  such  a  power  is  not 
likely  to  be  exercised ;  in  bad  times  it  is  sure  to  be 
abused.  Congress  are,  therefore,  prohibited  from  passing 
a  bill  of  attainder. 

12* 

I 


138  AN   EXPOSITION   OF   THE 


Ex  Post  Facto  Laws. 

216.  By  an  ex  post  facto  law  is  meant  a  law  that 
makes  an  act  done  before  the  passing  of  the  law,  and 
which  was  innocent  when  done,  criminal ;  or  which 
aggravates  a  crime,  and  makes  it  greater  than  when 
it  was  committed ;  or  which  changes  the  punishment, 
and  inflicts  a  greater  punishment  than  the  law  an- 
nexed to  the  crime  when  committed ;  or  which  alters 
the  legal  rules  of  evidence,  and  receives  less  or 
different  testimony  than  the  law  required  at  the  time 
of  the  commission  of  the  offence,  in  order  to  convict 
the  offender;  or  subjects  an  individual  to  a  pecuniary 
penalty  for  an  act  which,  when  done,  involved  no  re- 
sponsibility, or  deprives  him  of  any  valuable  right — 
such  as  the  right  to  follow  a  lawful  calling — for  acts  not 
punishable  when  committed,  or  not  punishable  in  that 
mode,  the  law  will  be  ex  post  facto  and  void. 

217.  Ex  post  facto  laws  relate  to  penal  and  crimi- 
nal proceedings,  which  impose  penalties  or  forfeitures, 
and    not    to    civil    proceedings,  which    affect  private 
rights  retrospectively.     And  a  law  that  mitigates  the 
character  or  punishment  of  a  crime  already  committed,   J 
does  not  fall  within  the  prohibition  of  the  Constitu-  j 
tion,  such  law  being  in  favor  of  the  citizen,  and  molli* 
fying,  in  his  behalf,  the  rigor  of  the  criminal  law.     Nor    j 
are  statutes  which  enlarge  the  class  of  persons  who  may 


CONSTITUTION   OF   THE    UNITED   STATES.  139 

be  competent  to  testify  in  criminal  cases  ex  post  facto  in 
their  application  to  prosecutions  for  crimes  committed 
prior  to  their  passage.  But  a  statute  or  constitutional 
provision  which  denies  to  the  accused  the  benefit  of  a 
prior  law  that  acquitted  him,  for  example,  of  a  charge  of 
murder  in  the  first  degree,  on  conviction  of  murder  in 
the  second  degree,  is  an  ex  post  facto  law  within  the  mean- 
ing of  this  clause  of  the  constitution. 

Capitation  Tax. 

218.  We  have  elsewhere  seen  that  no  capitation 
or  other  direct  tax  can  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  which  the  Constitutic-n 
directs  to  be  taken  (sec.  136  et  seq.),  and  it  is  unne- 
cessary, therefore,  to  recur  to  the  subject  again. 

Taxes  on  Exports  prohibited. 

219.  No  tax  or  duty  can  be  laid  on  articles  ex- 
ported from  any  state,  and  this  for  the  obvious  reason 
that  such  a  tax  would  bear  unequally.  If  a  tax,  for 
instance,  could  be  laid  on  all  tobacco  exported,  then 
the  states  producing  and  exporting  tobacco  would 
bear  exclusively  a  portion  of  the  public  burthen  which 
ought  to  be  divided  among  all  the  states.  By  impos- 
ing a  heavy  tax  upon  any  single  article  of  export, 
the  states  not  exporting  such  article   might  remain 


140  AN    EXPOSITION    OF  TIIE 

exempt  from  contributing  their  just  share  of  the 
public  taxes.  Indeed,  if  Congress  were  not  altogether 
prohibited  from  laying  taxes  on  exports,  they  might 
derive  the  whole  revenue  of  the  government  from 
the  exports  of  particular  states.  Hence  the  propriety 
of  the  prohibition. 

220.  In  the  interpretation  of  this  clause  of  the  Con- 
stitution it  has  been  held  that  a  state  is  forbidden  to 
impose  a  stamp  duty  on  bills  of  lading  for  an  article  of 
commerce  transported  from  such  state  to  a  foreign  port, 
because  a  bill  of  lading  being  a  necessary  instrument  in 
the  transactions  of  commerce,  a  duty  thereon  is  in  effect 
a  tax  on  exports.  But  the  requirement  of  a  stamp,  under 
our  internal  revenue  system,  on  packages  of  tobacco 
intended  for  exportation,  as  a  means  of  separating  and 
identifying  such  packages,  and  of  carrying  out  such 
intent,  is  not  a  tax  on  exports. 

No  Preference  to  he  given  to  the  Ports  of  one  State 
over  those  of  another. 

221.  No  preference  can  be  given,  by  any  regula- 
tion of  commerce  or  revenue,  to  the  ports  of  one 
state  over  those  of  another ;  nor  can  vessels  bound 
to  or  from  one  state,  be  obliged  to  enter,  clear,  or 
pay  duties  in  another. 

222.  The  object  of  this  clause  is  to  prevent  advan- 
tages being  granted  to  one  state  at  the  expense  of 
others ;  and  also  to  prevent  that  system  of  commer- 
cial   regulation    by    which,    before    the    Revolution, 


CONSTITUTION   OF   THE   UNITED   STATES.  141 

vessels  sailing  from  the  colonies  for  Europe  were 
compelled  to  proceed  first  to  Great  Britain,  and  sail 
from  some  British  port.  The  power  thus  to  interrupt 
voyages  for  the  benefit  of  particular  states  is  properly 
denied  to  Congress. 

Appropriations. 

223.  No  money  can  be  drawn  from  the  Treasury, 
but  in  consequence  of  appropriations  made  by  law ; 
and  a  regular  statement  and  account  of  the  receipts 
and  expenditures  of  all  public  money  must  be  pub- 
lished from  time  to  time. 

224.  Two  checks  are  here  provided  against  an 
improper  use  of  the  public  money.  In  the  first  place, 
before  money  can  be  drawn  from  the  Treasury  by 
the  President  or  any  officer  of  the  government,  a 
specific  appropriation  must  be  made  by  Congress. 
In  the  second  place,  a  statement  of  the  receipts  and 
expenditures  of  all  public  money  must  be  published 
from  time  to  time,  and  Congress  are  thus  made 
responsible  to  the  people  for  any  extravagance  in 
the  public  expenditures^  Not  even  the  creditors  of 
the  government  can  be  paid  out  of  the  Treasury, 
without  Congress  first  making  an  appropriation  for 
that  purpose.  Their  only  remedy  is  an  application 
to  Congress,  as  they  can  neither  sue  the  United 
States  nor  have  a  lien  on  the  public  property  which 


142  AN    EXPOSITION    OF    THE 

may  happen  to  be  in  their  possession.  But  now,  by 
the  act  of  Feb.  24,  1855,  claims  against  the  United 
States,  and  counter  claims,  are  determined  by  a  court 
of  claims,  from  whose  decision,  in  certain  cases,  an 
appeal  lies  to  the  Supreme  Court. 

Titles  of  Nobility,  &c. 

225.  No  title  of  nobility  can  be  granted  by  the 
United  States ;  and  no  person  holding  any  office  of 
profit  or  trust  under  them  can,  without  the  consent 
of  Congress,  accept  of  any  present,  emolument, 
office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state. 

226.  Titles  of  nobility  are  incompatible  with  that 
spirit  of  equality  which  pervades  our  system  of 
government,  and  the  United  States  are,  therefore, 
prohibited  to  grant  them.  The  states,  likewise,  in 
their  individual  character,  as  we  shall  see  hereafter, 
are  equally  prohibited  to  grant  any  title  of  nobility. 

227.  Officers  of  the  United  States  are  forbidden 
to  accept,  without  the  consent  of  Congress,  any 
present,  emolument,  office,  or  title,  of  any  kind  what- 
ever, from  any  king,  prince,  or  foreign  state,  lest 
foreign  governments  should  in  that  manner  unduly 
influence  our  affairs.  When  presents  are  sent  to  the 
President,  as  they  sometimes  are  from  foreign 
princes,  they  are  usually  deposited  in  the  public 
offices — it  not  being  thought  courteous  to  decline 
them. 


CONSTITUTION   OF   THE   UNITED   STATES.  143 


POWERS  DENIED  TO  THE  STATES. 

z28.  Having  now  considered  the  restrictions  which 
the  Constitution  imposes  upon  Congress,  we  next 
proceed  to  consider  the  restrictions  which  are  im- 
posed upon  the  states. 

Prohibition  as  to  Treaties,  &c. 

229.  The  first  is,  that  no  state  shall  enter  into 
any  treaty,  alliance,  or  confederation  ;  grant  letters 
of  marque  and  reprisal ;  coin  money ;  emit  bills  of 
credit ;  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts  ;  pass  any  bill  of  attain- 
der, ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts,  or  grant  any  title  of  nobility. 

230.  It  will  be  observed  that  several  of  these 
restrictions  are  among  the  number  of  those  which  we 
have  already  enumerated  as  being  imposed  on  Con- 
gress :  such,  for  example,  as  the  prohibition  to  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  to  confer 
any  title  of  nobility.  But  for  the  most  part,  the 
powers  which  are  here  denied  to  the  states  may  be 
exercised  by  Congress. 


144  AN   EXPOSITION    OF   THE 

231.  It  is  obvious  that  if  the  states  were  at  liberty 
to  make  treaties,  or  form  alliances  and  confederations, 
there  would  be  no  harmony  or  uniformity  in  our  rela- 
tions abroad,  and  no  stability  or  independence  at 
home.  The  separate  states  might  form  conflicting 
treaties  and  alliances,  and  enter  into  such  engage 
ments  as  would  give  foreign  powers  an  opportunity 
to  interfere  and  exercise  a  control  in  our  affairs. 
The  treaty-making  power,  therefore,  is  denied  to  the 
states,  and  confided  to  the  government  of  the  Union. 

232.  Not  only  are  the  states  forbidden  to  enter  into 
any  treaty,  alliance  or  confederation,  while  in  the  union, 
but  it  has  been  decided  by  the  Supreme  Judicial  tribunal 
of  the  Federal  Government,  that  they  have  no  lawful 
power  to  depart  from  the  Union,  and  to  form  Confed- 
eracies outside  of  it.  Ordinances  of  secession  and  acts 
of  legislation,  intended  to  give  effect  to  such  ordinances, 
are  absolutely  null.  In  spite  of  them,  the  states  and 
their  citizens  do  not  cease  to  be  members  of  the  Union. 
And  their  acts  of  legislation,  while  thus  attempting  to 
withdraw  from  the  Union,  which  do  not  impair,  or  tend 
to  impair,  the  supremacy  of  the  Federal  authority,  or 
the  rights  of  the  citizens  under  the  Constitution,  will  be 
treated  as  valid  and  binding. 

Letters  of  Marque  and  Reprisal. 

233.  Though  letters  of  marque  and  reprisal  are 
sometimes   granted   in   peace,   as   a   means  of   redress, 


CONSTITUTION   OF   THE   UNITED   STATES.  145 

and  not  as  a  measure  of  hostility,  yet  they  are 
usually  the  precursor  of  war  whether  so  intended  or 
not.  Hence  it  would  be  most  unwise  to  put  it  in  the 
power  of  a  single  state  to  involve  the  whole  country 
in  hostilities,  by  adopting  a  measure  which  would  be 
likely  to  incur  them. 

Coinage. 

234.  The  power  to  coin  money  is  denied  to  the- 
states,  and  confided  exclusively  to  Congress,  in  order 
to  secure  a  uniform  currency  in  place  of  coins  of 
various  forms  and  weights,  which  otherwise  might  be 
put  in  circulation.  It  has  been  said,  and  truly,  that 
if  the  states  could  coin  money  and  regulate  its  value,, 
then  there  might  be  as  many  different  currencies  as- 
states.  Yet  the  same  practical  consequence  follows* 
from  the  power  which  the  states  exercise  of  authoriz- 
ing the  circulation  of  bank  paper  as  currency.  A. 
uniform  metallic  currency  is  secured  by  giving  to- 
Congress  the  exclusive  authority  to  coin  money  andl 
regulate  its  value  ;  but  there  is  no  such  uniformity 
in  the  paper  currency  of  the  states,  which  is  the- 
actual  and  well-nigh  universal  substitute  for  coin- 
The  paper  currency  of  the  states,  however,  under  re- 
cent legislation,  has  almost  entirely  given  way  to  the 
circulation  of  the  national  banks.  It  has  been  sup- 
posed that  the  taxing  power  of  Congress  was  confined 
to  the  purpose  of  raising  revenue ;  yet  in  aid  of  the 
13  K 


146  AN    EXPOSITION   OF   THE 

circulation  of  the  national  banks,  the  state  banks 
have  well-nigh  been  taxed  out  of  existence,  and  this 
too  under  acts  of  Congress  passed  avowedly  for  the 
purpose.  The  constitutionality  of  this  taxation  too 
has  been  sustained  by  the  Supreme  Court  of  the 
United  States.  The  force  of  the  decision,  however, 
is  much  impaired  by  the  fact  that  it  was  the  decision 
of  a  divided  court. 

Bills  of  Credit. 

235.  Bills  of  credit,  which  the  states  are  prohibited 
to  emit,  are  bills  issued  by  a  state  on  the  faith  of  the 
state,  and  intended  to  circulate  through  the  commu- 
nity in  the  ordinary  business  of  life  as  money.  Bonds 
or  obligations,  therefore,  issued  by  or  on  behalf  of 
a  state,  binding  it  to  pay  money  at  a  future  day, 
for  purchases  which  it  has  made,  or  for  services  re- 
ceived, or  for  money  borrowed,  are  not  bills  of  credit 
within  the  meaning  of  the  Constitution.  Neither  are  # 
the  bills  issued  by  banks  which  a  state  incorporates, 
though  the  state  may  be  a  stockholder  in  such  banks, 
or  even  the  exclusive  owner  of  the  stock.  But  if  the 
bills  were  issued  on  the  credit  of  the  state,  instead 
of  the  credit  of  the  funds  of  the  bank,  it  would  be 
otherwise. 


CONSTITUTION   OF   THE   UNITED    STATES.  147 


Legal  Tender. 
236.  Though  the  states  may  authorize  the  issue  of 
paper  money,  they  are  prohibited  to  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts. 
During  the  Revolutionary  War  and  subsequently, 
attempts  were  frequently  made  to  maintain  the  credit 
of  paper  money,  by  making  it  a  tender  in  payment 
of  debts — the  result  being  gross  wrong  and  injustice 
to  creditors.  Instances  were  not  wanting  where  the 
debtor  had  received  gold  and  silver,  and  yet  was 
enabled  to  pay  his  debt  with  paper  money,  which 
was  so  depreciated  as  to  be  nearly  worthless.  It 
was  to  prevent  the  possibility  of  such  grievances  that 
the  states  were  inhibited  to  make  anything  but  gold 
and  silver  coin  a  tender  in  payment  of  debts. 


Bills  of  Attainder  and  Ex  Post  Facto  Laws. 

237.  We  have  already  seen  that  Congress  can 
pass  no  bill  of  attainder  or  ex  post  facto  law 
(sec.  214),  and  for  the  same  reason  the  states  are 
equally  prohibited  to  pass  such  laws.  A  power  to  do 
so  could  scarcely  be  exercised  by  the  most  judicious 
hands  without  oppression  and  injustice,  and  it  is 
therefore,    denied    both    to    Congress    and    the    state 


148  AN    EXPOSITION   OF   THE 

legislatures.  But  an  ex  post  facto  law,  it  will  be 
recollected,  relates  to  criminal  proceedings.  Hence 
the  Constitution  does  not  prohibit  the  states  from 
passing  retrospective  laws  which  relate  to  civil  pro- 
ceedings, though  such  laws  may  destroy  vested 
interests  or  affect  private  rights.  A  contract,  for 
example,  founded  upon  an  illegal  or  immoral  consi- 
deration is  void  ;  yet  it  would  not  be  repugnant  to 
the  Constitution  for  a  state  to  enact  that  all  such 
contracts  should  be  valid  and  binding  upon  the  par- 
ties, though  such  enactment  would  be  retrospective 
in  its  character. 

238.  A  bill  of  attainder,  to  repeat  what  has  already 
been  said  in  a  preceding  section  (215)  is  a  legislative 
act  which  inflicts  punishment  without  a  judicial  trial. 
If  the  punishment  be  less  than  death,  the  act  is  termed 
a  bill  of  pains  and  penalties.  Within  the  meaning  of 
the  constitution,  bills  of  attainder  iuclude  bills  of  pains 
and  penalties.  But  under  the  inhibition  of  the  constitution 
neither  Congress  nor  the  state  legislatures  can  pass  such 
acts.  The  rights  of  the  citizens  are  secure  against  depri- 
vation or  suspension  for  past  conduct  by  legislative 
enactment,  under  any  form,  however  disguised. 


CONSTITUTION    OF   THE    UNITED   STATES.  149 


Impairing  the  Obligation  of  Contracts. 
239.  The  states  can  pass  no  law  impairing  the 
obligation  of  contracts; (nor  does  the  constitution  au-  %, 
thorize  Congress  to  pass  such  laws.^)  Any  deviation  from 
the  terms  of  a  contract,  by  which  the  intentions  of  the 
parties  are  enlarged  or  abridged,  or  in  any  manner  changed, 
as  by  postponing  or  accelerating  the  period  of  perform- 
ance, imposing  conditions  not  expressed  in  the  contract,  or 
dispensing  with  those  which  are  expressed,  however 
minute  or  apparently  immaterial  in  their  effect  upon 
the  contract,  impair  its  obligation.  Laws,  however, 
which  merely  affect  or  change  the  remedy  by  which 
a  contract  is  enforced,  do  not  impair  its  obligation, 
provided  effectual  though  different  means  of  enforcing 
it  remain. 

240.  The  contracts  to  which  the  Constitution 
refers  are  those  which  respect  property,  or  some 
object  of  value,  and  confer  rights  which  may  be 
asserted  in  a  court  of  justice.  Such  contracts,  whether 
entered  into  between  individuals,  or  states,  or  corpo- 
rations, or  between  a  state  and  individuals,  cannot 
be  impaired  by  state  legislation. 

241.  A  state  is  as  much  inhibited  from  impairing 
its  own  contracts,  or  contracts  to  which  it  is  a  party, 
as  it  is  from  impairing  the  obligation  of  contracts 
between  individuals.  When,  therefore,  a  state  makes 
a  grant  of  lands  or  corporate  powers,  an  implied  con- 

13* 


150  AN    EXPOSITION   OF   THE 

tract  arises  that  it  will  not  reassert  the  right  with 
which  it  has  parted.  Thus,  when  a  state  makes  a 
conveyance  of  land,  such  conveyance  cannot  be  re- 
scinded or  revoked  by  the  state.  The  right  of  the 
state  is  extinguished  by  the  grant,  and  cannot  be 
resumed.  But  it  may  discontinue  offices  created  by 
statute,  or  take  away  the  compensation  without  abol- 
ishing the  office ;  or,  as  we  shall  see  in  section  243, 
abolish  or  change  the  organization  of  municipal  cor- 
porations at  any  time,  unless  forbidden  by  its  own 
fundamental  law.  It  cannot,  howTever;  take  from  a 
municipal  corporation  the  power  to  levy  taxes  to  pay 
existing  debts;  nor  authorize  stay  of  execution  in  a 
case  where  the  debtor  has  expressly  waived  it ;  nor 
deprive  persons  of  the  right  to  maintain  suits  because 
participating  in  or  sympathizing  with  rebellion  against 
the  United  States ;  nor  invalidate  a  contract  for  the 
purchase  or  hire  of  slaves,  such  contract  being  valid 
when  made  ;  nor  compel  a  public  creditor  to  surrender 
his  securities,  and  accept  others  bearing  a  less  interest. 
242.  When  a  state  or  city  borrows  money,  and  con- 
tracts to  repay  it  with  interest,  it  cannot  detain"  any  part 
of  the  agreed  interest  by  calling  the  amount  detained  a 
tax.  This  would  impair  the  obligation  of  the  contract. 
The  constitutional  provision  against  impairing  contract 
obligations,  is  a  limitation  upon  the  taxing  power,  as 
well  as  upon  all  legislation,  whatever  form  it  may  assume. 
Nevertheless,  a  state  may  tax  any  of  its  creditors  within 
its  jurisdiction  for  the  debt  due  to  him,  and  regulate  the 


CONSTITUTION    OF   THE   UNITED   STATES.  151 

amount  of  the  tax  by  the  rate  of  interest  the  debt  bears, 
if  its  promise  be  left  unchanged.  But  this  cannot  be 
done  until  payment  of  the  debt  or  interest  has  been 
made,  as  stipulated,  and  the  money  has  become  a  part  of 
the  common  mass  of  property.  And  so  a  tax  may  be 
imposed  on  income  derived  from  contracts,  if  it  does  not 
prevent  the  receipt  of  the  income.  We  may  add  that 
when  a  municipal  corporation  makes  a  contract  upon  the 
faith  that  taxes  will  be  levied,  any  legislation  repealing 
or  modifying  its  taxing  power,  so  as  to  deprive  the  holder 
of  the  contract  of  all  adequate  and  efficacious  remedy,  is 
within  the  constitutional  inhibition.  On  the  other  hand, 
a  right  to  reimbursement  for  damages  caused  by  a  mob, 
is  not  a  right  founded  on  contract  between  such  corpora- 
tion and  the  sufferers.  Its  liability  is  created  by  law, 
and  the  law  can  be  repealed  or  modified,  either  before  or 
after  the  damage  has  occurred,  and  even  though  the 
statutory  right  has  been  converted  into  a  judgment.  It 
is  purely  a  matter  of  legislative  policy. 

243.  With  regard  to  charters,  they  are  divided 
into  two  classes,  namely,  public  and  private  charters. 
The  former  are  such  as  relate  to  public  purposes 
alone,  to  charters  that  incorporate  towns,  cities,  &c. 
Such  charters  merely  grant  political  power,  and  are 
not  contracts  within  the  meaning  of  the  Constitution, 
and  may,  therefore,  be  changed  or  modified  at  the 
pleasure  of  the  state  legislatures — care  being  taken, 
of  course,  not  to  violate  or  infringe  private  rights. 
But  private  charters,  such  as  are  granted  to  banks, 


152  AN    EXPOSITION   OF   THE 

colleges,  insurance  or  turnpike  companies,  are  con- 
tracts between  the  state  and  the  corporators,  and 
canuot,  therefore,  without  the  consent  of  such  corpo- 
rators, be  altered  or  repealed  by  the  state,  unless  the 
right  to  do  so  has  been  expressly  reserved ;  nor  can 
the  state  subject  a  private  corporation  to  forfeiture 
of  its  franchises  for  that  which  was  not  a  cause  of 
forfeiture  originally  ;  nor  repeal  a  statute  which  made 
the  stockholders  liable  for  its  debts  contracted  while 
it  was  in  force. 

244.  But  the  legislature  of  a  state  cannot  by  any 
contract  divest  itself  of  the  power  to  provide  for  the  pro- 
tection of  the  lives,  health,  morals,  and  property  of  its 
citizens.  No  legislature  by  grant  or  charter  can  bargain 
away  the  public  health,  or  the  public  morals.  And  if  it 
does  so,  a  subsequent  legislature  may  repeal  such  grant 
or  charter,  without  being  obnoxious  to  the  constitutional 
inhibition  against  impairing  the  obligation  of  contracts. 

245.  And  where  a  state  grants  rights  to  private  cor- 
porators in  matters  in  which  the  public  interest  is  concerned 
no  implied  contract  arises  that  it  will  not  make  a  simiiai 
grant  to  other  corporators,  though  the  second  grant  may 
operate  to  the  injury  of  the  first.  Thus  where  a  state 
granted  a  charter  to  a  company  authorizing  them  to  build 
a  bridge,  and  take  tolls  thereon  for  a  certain  period,  it 
was  held  that  it  might  equally  grant  a  similar  charter 
to  another  company,  though  the  second  bridge  should 
be  on  the  same  line  of  travel  as  the  first,  and  accom- 
modate  the  same  passengers,  and  thus  be  the  means 


CONSTITUTION    OF   THE   UNITED   STATES.  153 

of  diverting  its  tolls ;  and  this  for  the  reason  that  as 
no  direct  engagement  was  made  that  no  other  bridge 
should  be  built,  no  such  engagement  was  to  be  im- 
plied ;  because  in  such  cases  no  rights  are  to  be  taken 
from  the  public  and  given  to  corporations  by  impli- 
cation. 

246.  The  state  under  the  right  of  eminent  domain, 
to  which  all  contracts  are  subject,  may  appropriate 
corporate  franchises,  as  well  as  every  other  species 
of  property.  If  suitable  provision  is  made  by  the 
legislature  for  the  compensation  of  those  whose  prop- 
erty or  franchise  is  injured  or  taken  away,  under  this 
paramount  power,  there  is  no  violation  of  public  faith 
or  private  right.  On  the  contrary,  the  obligation  of 
the  contract  created  by  the  charter  is  thereby  re 
cognized. 

247.  A  state  law  which  discharges  a  debtor  from 
his  obligation  to  pay  a  debt  which  was  contracted 
before  the  passage  of  the  law,  is  unconstitutional  and 
void,  because  it  not  only  impairs,  but  destroys  the 
obligation  of  the  contract.  But  a  law  which  operates 
upon  and  discharges  future  contracts  is  constitutional, 
provided  such  contracts  are  made  within  the  state, 
and  between  citizens  of  the  state.  And  this  for  the 
reason  that  parties  to  a  contract  have  reference  to 
the  existing  laws  of  the  place  where  it  is  made.  They 
know  that  these  laws  act  upon  their  contract  and 
govern  its  construction,  validity,  and  obligation.  A 
state,  too,  may  prescribe  the  remedies  to  enforce  con- 


154  AN    EXPOSITION    OF   THE 

tracts,  and  pass  statutes  of  limitation,  as  well  as  change 
the  rules  of  evidence,  applicable  to  existing  causes  of 
action  or  to  pending  suits.  And  it  may  too  abolish  ex- 
isting remedies,  provided  other  and  efficient  ones  are 
substituted  or  remain,  and  may  increase  exemptions  of 
property  from  execution  arising  out  of  existing  contracts, 
and  abolish  imprisonment  for  debt. 

248.  A  statute  making  the  bills  of  a  bank,  whereof 
the  state  owns  the  stock,  receivable  in  payment  of  all 
debts  due  the  state,  constitutes  a  contract  between  the 
state  and  those  who  receive  the  bills ;  and  the  state  is 
thereby  precluded  from  depriving  the  bill  holders  of 
the  rights  acquired  under  such  statute,  by  repealing 
it.  So  too  a  state,  upon  a  consideration  therefor,  may 
agree  to  exempt  property  from  taxation,  or  to  exempt 
it  beyond  a  certain  rate  or  amount,  and  such  exemp- 
tion cannot  be  revoked.  On  the  other  hand,  if  the 
exemption  is  a  mere  privilege,  it  may  be  revoked  at 
any  time,  in  the  legislative  discretion. 

Prohibition  as  to  Imposts,  &c. 

249.  No  state  can,  without  the  consent  of  Con- 
gress, lay  any  imposts  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws ;  and  the  net  pro- 
duce of  all  duties  and  imposts,  laid  by  any  state  on 
imports  or  exports,  are  for  the  use  of  the  Treasury 
of  the  United  States  ;  and  all  such  laws  are  subject 
to  the  revision  and  control  of  Congress. 


CONSTITUTION   OF   THE   UNITED   STATES.  155 

250.  While  the  states  possess  a  concurrent  power 
of  taxation  with  the  United  States,  there  is  one 
source  of  revenue  which  they  cannot  touch  without 
the  consent  of  Congress ;  that  is,  they  cannot  lay 
any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  their 
inspection  laws.  By  this  prohibition  on  the  states 
to  impose  duties,  and  confiding  the  power  to  Congress 
alone,  a  uniform  system  of  duties  is  secured,  and 
rival  systems  on  the  part  of  the  several  states  pre- 
vented. 

251.  For  the  purpose,  however,  of  executing  their 
inspection  laws,  the  states  may  impose  such  duties  on 
imports  or  exports  as  may  be  absolutely  necessary ; 
but  the  money  arising  therefrom  is  not  for  the  use 
of  the  state.  The  net  produce  must  be  paid  into  the 
Treasury  of  the  United  States,  and  the  laws  imposing 
such  duties  are  subject  to  the  revision  and  control  of 
Congress.  Inspection  laws  are  such  as  require  cer- 
tain commodities  specified  in  the  laws  themselves, 
and  whether  produced  at  home  or  imported  from 
abroad,  to  be  examined,  and  their  quality  approved 
before  they  are  exported  or  offered  for  domestic  use. 

252.  A  state  law  requiring  the  importer  of  goods, 
by  wholesale,  bale,  or  package,  to  take  out  a  license 
and  pay  for  it,  under  certain  penalties  or  forfeitures 
for  neglect  or  refusal,  has  been  held  by  the  Supreme 


156  AN   EXPOSITION   OF   THE 

Court  to  be  unconstitutional  and  void,  both  because 
it  interferes  with  the  power  of  Congress  to  regulate 
commerce,  and  violates  the  prohibition  which  we  are 
now  considering,  that  no  state  can  lay  a  duty  on 
imports. 

253.  The  Court  regarded  a  tax  on  the  sale  of  an 
article  imported  only  for  sale,  or  a  tax  on  the  thing 
imported,  in  the  hands  of  the  importer,  as  equivalent 
to  a  tax  or  duty  upon  imports.  If  such  a  tax  could 
be  imposed  at  all,  it  might  be  made  so  heavy  as  to 
amount  to  a  prohibition,  and  thus  defeat  the  revenue 
by  import,  so  far  as  it  is  drawn  from  importations 
into  the  state  laying  the  tax. 

254.  But  when  the  importer  has  so  acted  upon  the 
thing  imported  that  it  has  become  incorporated  and 
mixed  up  with  the  mass  of  property  in  the  country, 
it  loses  its  distinctive  character  as  an  import,  and 
becomes  subject  to  the  taxing  power  of  the  state. 

255.  A  tax  on  the  gross  receipts  of  a  railroad  com- 
pany is  not  invalid  under  this  clause  of  the  constitution. 
It  is  not  regarded  as  a  tax  on  inter-state  transportation, 
nor  as  an  impost  or  duty  on  imports  or  exports,  but  as  a 
tax  on  the  fruits  of  transportation  ;  on  property,  in  other 
words,  which  has  become  incorporated  into  the  general 
mass  of  the  company's  property,  and  lost  its  distinctive 
character  as  freight  earned. 


CONSTITUTION   OF   THE   UNT 


Tonnage  Duties, 
256  No  state  can,  without  the  consent" 
lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in 
time  of  peace,  enter  into  any  agreement  or  compact  with 
another  state,  or  with  a  foreign  power,  or  engage  in  war 
unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay.         • 

257.  By  tonnage  is  meant  the  capacity  or  burden 
of  a  vessel  expressed  in  tons,  which  is  ascertained 
by  measurement,  according  to  a  rule  prescribed  by  an 
Act  of  Congress ;  and  a  duty  of  tonnage  is  a  charge  for 
the  privilege  of  entering,  or  trading  or  lying  in,  a  port  or 
harbor,  after  a  certain  rate  for  every  ton.  The  states  are 
prohibited  to  impose  such  a  duty,  or  any  duty  on  a  ship, 
without  the  consent  of  Congress,  for  the  same  general 
reason  that  they  are  prohibited  to  impose  duties  on  im- 
ports or  exports  without  a  similar  consent,  namely,  that 
there  may  be  a  uniform  system  in  all  the  states:  in  a 
word,  that  harmony  may  prevail  in  place  of  diversity, 
inequality  and  discord. 

258.  Taxes  levied  by  a  state  upon  ships  and  vessels 
owned  by  the  citizens  of  the  state  as  property,  based  on 
a  valuation  of  the  same  as  property,  are  not  forbidden  by 
the  Constitution,  but  taxes  levied  by  a  state  upon  ships 
and  vessels  as  instruments  of  commerce  and  navigation 
are  forbidden.  Hence  a  duty,  tax  or  burden  imposed 
under  the  authority  of  a  state,  which  is  by  the   law  im- 

14 


158  AN   EXPOSITION   OF   THE 

posing  it  to  be  measured  by  the  capacity  of  the  vessel, 
and  is  in  its  essence  a  contribution  claimed  for  the  privi- 
lege of  arriving  and  departing  from  a  port  of  the  United 
States,  or  of  trading,  or  lying  therein,  is  prohibited. 
But  a  charge  for  services  rendered  or  for  conveniences 
provided  is  not  a  tax  or  a  duty.  Thus  a  wharf  is  a  con- 
venience to  a  vessel,  and  when  used  by  a  vessel,  is  a  ser- 
vice rendered  to  it.  And  for  such  service  wharfage  may 
be  charged,  and  such  wharfage  may  be  proportioned  to 
the  size  or  tonnage  of  the  vessel,  without  being  a  tonnage 
tax  in  the  sense  of  the  Constitution.  Nor  is  it  a  regula- 
tion of  commerce. 


Troops  and  Ships  of  War. 

259.  The  states  are  prohibited  to  keep  troops  or 
ships  of  war  in  time  of  peace,  without  the  consent  of 
Congress,  because  the  power  to  declare  war,  raise 
and  support  armies,  and  to  provide  and  maintain  a 
navy,  is  confided  to  Congress,  and  is  supposed  to  be 
adequate  to  the  security  of  the  states  without  their 
keeping  up  military  armaments  themselves.  Besides, 
if  the  states  were  at  liberty  to  keep  on  foot  standing 
forces,  it  might  lead  to  collisions  among  them  or  with 
the  general  government,  or  end  in  the  establishment 
of  military  governments  in  place  of  civil  institutions. 


CONSTITUTION   OF   THE   UNITED   STATES.  159 


Compacts. 
260.  The  restriction,  that  no  state  shall  enter  into 
any  agreement  or  compact  with  another  state,  or 
with  a  foreign  power,  without  the  consent  of  Con- 
gress, is  intended  to  prevent  any  infringement  of 
the  rights  of  the  federal  government.  The  words 
are  used  in  a  political  sense,  and  were  intended  to 
cut  off  all  negotiation  and  intercourse  between  the 
state  authorities  and  foreign  nations.  They  cannot, 
for  example,  without  the  consent  of  Congress,  enter 
into  any  agreement  or  compact,  express  or  implied, 
to  deliver  up  fugitives  from  justice  from  a  foreign 
state,  who  may  be  found  within  their  limits. 

261.  Coupled  with  the  previous  clause,  which 
prohibits  any  state  from  entering  into  any  treaty, 
alliance,  or  confederation,  the  door  is  closed  against 
any  political  or  other  arrangements  and  combinations, 
on  the  part  of  the  states,  which  might  interfere  with 
the  stability  and  harmony  of  the  Union,  or  the  rights 
and  controlling  authority  of  the  government  of  the 
Union.  The  consent  of  Congress,  however,  to  agree- 
ments between  states  need  not  be  express,  but  may 
be  implied  from  its  legislation  on  the  subject. 


J  60  AN    EXPOSITION   OF   THE 

Prohibition  as  to  War. 

262.  The  power  of  declaring  war  being  confided 
to  Congress,  it  is  very  proper  that  the  states  should 
be  prohibited  to  engage  in  it  without  the  consent  of 
Congress,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay.  Otherwise 
all  the  states  might  become  involved  in  war  in  con- 
sequence of  the  folly,  caprice,  or  rashness  of  any 
single  state.  When  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  of  delay,  the 
states  have  the  right  to  raise  troops  without  the  con- 
sent of  Congress,  and  provide  for  their  own  safety. 

Implied  Prohibition  as  to  Taxation. 

263.  In  addition  to  the  express  prohibitions  upon 
the  states,  which  we  have  mentioned  in  the  preceding 
sections,  there  is  an  important  implied  one,  namely, 
that  the  states  shall  not  tax  any  of  the  instruments 
employed  by  the  government  in  the  execution  of  its 
powers.  They  cannot  tax  the  mail,  nor  the  mint, 
nor  patent  rights,  nor  the  papers  of  the  custom- 
house, nor  judicial  process,  nor  stock  issued  for  loans 
to  the  United  States,  nor  the  salaries  of  officers  of 
the  United  States,  nor  ships,  nor  munitions  of  war, 
nor,  in  a  word,  any  of  the  means  or  agencies  employed 
to  carry  into  effect  the  objects  of  the  government. 


CONSTITUTION   OF   THE    UNITED    STATES.  161 

264.  But  while  this  is  true,  it  must  be  remembered 
that  the  taxing  power  of  a  state  is  one  of  its  sovereign 
attributes  ;  that  it  is  not  derived  from  the  Constitution  of 
the  United  States ;  and  that  in  respect  to  property,  busi- 
ness, and  persons  within  its  limits,  this  power  remained, 
and  remains  entire,  notwithstanding  the  Constitution. 
It  is,  however,  a  power  concurrent  with  that  of  the  gen- 
eral government,  and  in  case  of  a  tax  upon  the  same 
subject  by  both  the  state  and  general  governments,  the 
claim  of  the  latter  as  the  supreme  authority  must  be 
preferred.  And  as  we  have  seen  in  the  preceding  section, 
it  is  a  power  restrained  by  this  condition,  namely,  that  it 
must  not  be  so  used  as  to  burden  or  embarrass  the  opera- 
tions of  the  general  government.  But  a  state  tax  which 
remotely  affects  the  efficient  exercise  of  a  Federal  power 
is  not  for  that  reason  alone  inhibited  by  the  Constitution. 
Hence  a  state  may  tax  the  property  of  a  railroad  com- 
pany though  it  is  part  of  a  system  of  roads  constructed 
under  the  direction  and  authority  of  the  United  States 
and  largely  for  the  uses  and  purposes  of  its  government. 
14*  L 


162  AN    EXPOSITION    OF   THE 


THE  PRESIDENT. 

General  Observations. 

265.  The  vigor  and  efficiency  of  every  government 
essentially  depend  upon  its  executive  authority. 
Hence  all  lawgivers  have  bestowed  great  attention 
upon  its  constitution.  If  too  much  power  is  confided 
to  this  department,  it  may  be  employed  to  overthrow 
the  other  departments,  and  concentrate  all  the  powers 
of  government  in  its  own  hands ;  if  too  little,  then  its 
action  is  languid,  and  imbecility  marks  all  its  move- 
ments. Various  expedients  have  been  resorted  to  in 
order  to  guard  against  abuse  on  the  one  hand,  and 
weakness  on  the  other.  In  some  cases  the  executive 
power  has  been  divided  among  several  persons  ;  in 
others  concentrated  in  a  single  hand.  In  some  cases 
it  has  been  declared  hereditary  ;  in  others  elective, 
while  again  there  has  been  no  distinct  executive  de- 
partment— all  the  powers  of  government  being  united 
in  a  single  assembly.  This  was  the  case  under  the 
Confederation,  the  whole  power  of  the  government 
being  vested  in  Congress. 

266.  The  evils  of  this  latter  system  had  been  too 


CONSTITUTION   OF    THE    UNITED    STATES.  163 

clearly  demonstrated  to  admit  of  any  division  of 
opinion  in  the  Convention,  as  to  the  necessity  of 
separating  the  executive  from  the  legislative  and 
judicial  departments,  and  giving  it  a  distinct  sphere. 
The  general  sentiment  too  was  in  favor  of  confiding 
it  to  the  hands  of  a  single  officer,  though  there  were 
voices  who  advocated  a  plural  executive.  It  was 
said  that  an  executive  composed  of  three  persons, 
chosen  from  the  three  great  divisions  of  the  country, 
would  prevent  any  one  division  from  prejudicing  the 
interests  of  the  other  divisions.  But  the  dissensions 
and  factious  consequences  which  had  always  arisen 
in  governments  where  the  executive  authority  was 
divided  among  several  persons,  were  sufficient  to 
restrain  the  Convention  from  repeating  that  error. 

Unity  of  the  Executive. 

267.  The  nature  of  man  arid  the  lessons  of  history 
conspired  to  show  the  importance  of  unity  in  the 
executive  department  of  the  government.  Hence 
the  executive  power  was  vested  in  a  President  of  the 
United  States  of  America.  He  holds  his  office  during 
the  term  of  four  years,  and,  together  with  the  Vice- 
President,  chosen  for  the  same  term,  is  elected  in  the 
mode  described  in  a  succeeding  section. 


164  AN    EXPOSITION   OF   THE 


Term  of  Office. 

268.  Though  the  President  is  re-eligible  for  suc- 
cessive terms,  yet,  in  practice,  he  never  has  been  a 
candidate  for  a  third  election.  It  was  the  opinion 
of  many  enlightened  statesmen  that  he  should  be 
elected  for  seven  years,  and  be  ineligible  afterwards. 
"  But  the  practice  adopted,"  says  Mr.  Jefferson,  "I 
think  is  better,  allowing  his  continuance  for  eight 
years,  with  a  liability  to  be  dropped  at  half  way  of 
the  term,  making  that  a  period  of  probation." 

269.  Doubtless  the  frequent  election  of  an  execu- 
tive magistrate  for  a  great  country  is  attended  with 
evils ;  it  creates  great  excitement,  involves  much 
expense  and  loss  of  time  on  the  part  of  the  electors, 
and  renders  the  policy  of  the  government  in  a  mea- 
sure uncertain.  But,  on  the  other  hand,  were  he  to 
hold  office  for  life  or  a  long  term  of  years,  the 
struggle  to  obtain  possession  of  so  splendid  a  prize 
might  break  out  in  dissensions,  tumults,  and  civil 
war.  Besides,  such  an  executive  would  not  have 
that  sense  of  dependence  on  the  public  approbation 
which  is  an  essential  check  on  his  conduct. 

Mode  of  Election. 

270.  Each  state  appoints,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  number  of  electors 


CONSTITUTION    OF   THE    UNITED   STATES.  165 

equal  to  the  whole  number  of  Senators  and  Repre- 
sentatives  to  which  the  state  may  be  entitled  in  the 
Congress ;  but  no  Senator  or  Representative,  or 
person  holding  an  office  of  trust  or  profit  under  the 
United  States,  can  be  appointed  an  elector. 

271.  The  legislature  of  each  state  may  directly 
choose  the  electors  itself,  or  refer  the  choice  to  the 
people.  All  the  state  legislatures,  it  is  believed,  have 
adopted  the  latter  course,  which  is  thought  to  be  pref- 
erable to  the  former,  as  giving  less  opportunity  for 
corrupt  combinations  or  coalitions. 

272.  That  the  electors  may  be  impartial  persons, 
and  unbiassed  by  their  connection  with  or  dependence 
on  the  President  in  office,  who  might  desire  a  re-elec- 
tion, it  is  provided  that  no  member  of  Congress,  nor 
any  person  holding  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  an  elector.  Each  state 
has  the  same  number  of  electors  as  Senators  and  Re- 
presentatives, which  gives  to  the  several  states  in  the 
choice  of  President  the  same  relative  weight  that 
they  possess  in  Congress. 

273.  When  chosen,  the  electors  meet  in  their  re- 
spective states  and  vote  by  ballot  for  President  and 
Vice-President,  one  of  whom,  at  least,  must  not  be 
an  inhabitant  of  the  same  state  with  themselves. 
They  must  name  in  their  ballots  the  person  voted  for 
as    President,  and,  in    distinct    ballots,    the    person 


16G  AN    EXPOSITION    OF    THE 

voted  for  as  Vice-President,  and  they  must  make 
distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and 
of  the  number  of  votes  for  each,  which  lists  they 
must  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the 
Senate  is  required,  in  presence  of  the  Senate  and 
House  of  Representatives,  to  open  all  the  certificates, 
and  the  votes  must  then  be  counted.  The  person 
having  the  greatest  number  of  votes  for  President  is 
President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed ;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list  of 
those  voted  for  as  President,  the  House  of  Repre- 
sentatives must  choose  immediately,  by  ballot,  the 
President.  But,  in  choosing  the  President,  the  votes 
must  be  taken  by  states,  the  representation  from 
each  state  having  one  vote.  A  quorum  for  this  pur- 
pose consists  of  a  member  or  members  from  two- 
thirds  of  the  states,  and  a  majority  of  all  the  states 
are  necessary  to  a  choice.  And  if  the  House  of  Re- 
presentatives do  not  choose  a  President  whenever 
the  right  of  choice  devolves  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice- 
President  acts  as  President,  as  in  the  case  of  the 


CONSTITUTION    OF   THE   UNITED   STATES.  167 

death  or  other  constitutional  disability  of  the  Presi- 
dent. The  person  having  the  greatest  number  of 
votes  as  Vice-President  is  Vice-President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors 
appointed,  and  if  no  person  have  a  majority,  then 
from  the  two  highest  numbers  on  the  list,  the  Senate 
must  choose  the  Vice-President;  a  quorum  for  the 
purpose  consists  of  two-thirds  of  the  whole  number 
of  Senators,  and  a  majority  of  the  whole  number  is 
necessary  to  a  choice.  But  no  person  constitution- 
ally ineligible  to  the  office  of  President  is  eligible  to 
that  of  Vice-President  of  the  United  States.* 

*  The  present  mode,  as  described  in  the  text,  of  electing  the 
President  and  Vice-President,  is  different  from  the  mode  originally 
provided  by  the  Constitution.  But,  in  the  year  1804,  the  Consti- 
tution was  amended,  and  the  amendment  superseded  the  original 
clause.  It  may  be  useful,  however,  for  reference  and  comparison 
to  insert  the  original  provision  in  this  place.     It  is  as  follows : 

The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  state  with  themselves.  And  they  shall  make 
a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for 
each ;  which  list  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in 
the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  elect- 
ors appointed ;  and  if  there  be  more  than  one  who  have  such  a 
majority,  and  have  an  equal  number  of  votes,  then  the  House  of 
Representatives  shall  immediately  choose  by  ballot  one  of  them 


168  AN    EXPOSITION   OF   THE 

Time  of  Election. 

274.  Congress  may  determine  the  time  of  choosing 
the  electors,  and  the  day  on  which  they  shall  give 
their  votes  ;  which  day  shall  be  the  same  throughout 
the  United  States. 

275.  By  an  Act  of  Congress,  passed  in  1845,  the 
electors  are  required  to  be  chosen  in  each  state  on 
the  Tuesday  next  after  the  first  Monday  in  November. 
By  a  previous  Act,  passed  March  1,  1792,  the  elect- 
ors are  directed  to  meet  in  their  respective  states, 
at  a  place  appointed  by  the  legislature  thereof,  on 
the  first  Wednesday  in  December  in  every  fourth 
year  succeeding  the  last  election,  and  vote  by  ballot 
for  President  and  Vice-President.  They  are  then  to 
make  and  sign  their  certificates  of  all  the  votes  by 
them  given,  and  to  seal  up  the  same,  certifying  on 
each  that  a  list  of  the  votes  of  such  state  for  Presi- 
dent and  Vice-President  is  contained  therein  ;   and 

for  President ;  and  if  no  person  have  a  majority,  then,  from  the 
five  highest  on  the  list,  the  said  House  shall  in  like  manner 
choose  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states  ;  the  representation  from  each  state 
having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  states,  and  a  majority 
of  all  the  states  shall  be  necessary  to  a  choice.  In  every  case, 
after  the  choice  of  the  President,  the  person  having  the  greatest 
number  of  votes  of  the  electors  shall  be  Vice-President.  But  if 
there  should  remain  two  or  more  who  have  equal  votes,  the 
Senate  shall  choose  from  them  by  ballot  the  Vice-President. 


CONSTITUTION   OF   THE   UNITED   STATES.  169 

appoint  a  person  to  take  charge  of  and  deliver  one 
of  the  certificates  to  the  President  of  the  Senate,  at 
the  seat  of  government,  before  the  first  Wednesday 
of  the  next  ensuing  January;  another  of  the  certifi- 
cates is  to  be  forwarded  forthwith  by  the  Post-office 
to  the  President  of  the  Senate  at  the  seat  of  govern- 
ment;  and  the  third  is  to  be  delivered  to  the' judge 
of  the  district  in  which  the  electors  assembled. 

276.  The  President  of  the  Senate,  on  the  second 
Wednesday  in  February  succeeding  every  meeting 
of  the  electors,  in  the  presence  of  both  Houses  of 
Congress,  opens  all  the  certificates,  and  the  votes  are 
then  counted  and  the  result  declared.  It  will  be  ob- 
served that  the  Constitution  does  not  determine  how 
questions  which  may  arise  as  to  the  regularity  and 
authenticity  of  the  returns  of  the  electoral  votes,  or 
the  right  of  the  persons  who  gave  the  votes,  or  the 
manner  or  circumstances  in  which  they  ought  to  be 
counted,  shall  be  decided.  In  the  absence  of  any  rule 
as  to  the  jurisdiction  or  mode  of  proceeding  in  such 
cases,  a  partisan  majority  in  Congress,  as  has  been 
justly  remarked,  may  always  have  the  power  to  defeat 
the  will  of  the  people  in  the  count,  or  to  precipitate 
civil  war.  It  is  provided  by  law,  that  the  term  of  four 
years,  for  which  a  President  and  Vice-President  shall 
be  chosen,  shall,  in  all  cases,  commence  on  the  fourth 
day  of  March  next  succeeding  the  day  on  which  the 

votes  of  the  electors  shall  have  been  given. 
15 


170  AN    EXPOSITION    OF   THE 

Qualifications  for  President 

277.  No  person,  except  a  natural  born  citizen,  or 
a  citizen  of  the  United  States  at  the  time  of  the 
adoption  of  the  Constitution,  is  eligible  to  the  office 
of  President ;  neither  is  any  person  eligible  to  that 
office  who  has  not  attained  to  the  age  of  thirty-five 
years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

278.  Were  foreigners  or  naturalized  citizens  eligi- 
ble to  the  office  of  President,  foreign  powers  might 
have  an  opportunity  to  intermeddle  in  our  affairs. 
They  might  aid  by  morfey  or  other  influences  in 
elevating  to  the  Presidency  men  of  foreign  birth  and 
predilections,  and  the  interests  of  the  country  be 
thus  put  in  jeopardy.  The  exception  in  favor  of 
such  persons  of  foreign  birth  as  were  citizens  of  the 
United  States  at  the  time  of  the  adoption  of  the 
Constitution,  is  now  practically  extinct.  The  distin- 
guished patriots  who  had  so  faithfully  served  their 
adopted  country  during  the  revolutionary  struggle, 
and  out  of  respect  and  gratitude  to  whom  this  excep- 
tion was  introduced  into  the  Constitution,  have  all 
passed  away.  No  one,  therefore,  but  a  natural  born 
citizen  can  now  be  elected  to  the  office  of  President. 

279.  In  respect  to  the  qualification  of  age,  it  will 
be  observed  that  the  Constitution  has  established  a 
gradation,  as  it  were,  in  the  legislative  and  executive 


CONSTITUTION   OF   THE   UNITED   STATES.  171 

departments.  A  Representative  must  be  twenty-five, 
a  Senator  thirty,  and  the  President  thirty-five. 
Without  adverting  to  the  relative  importance  of  the 
duties  confided  to  each,  and  which  may  require  a 
higher  qualification,  in  point  of  age,  in  the  case  of 
the  President  than  is  required  in  the  case  of  a 
Representative  or  Senator,  it  may  be  remarked  that 
it  will  rarely  happen  that  the  people  of  all  the  states 
will  have  had  an  opportunity  to  become  familiar  with 
the  character,  capacity,  and  principles  of  a  citizen 
of  any  one  state  before  he  has  attained  the  age  of 
thirty-five  ;  or  that  he  will  have  acquired  that  expe- 
rience, knowledge,  gravity  of  character,  and  solidity 
of  judgment  that  ought  to  distinguish  a  President  of 
the  United  States. 

280.  By  fixing  the  qualification,  too,  at  thirty-five, 
an  opportunity  is  afforded  for  previous  service  in 
both  branches  of  Congress,  where  the  future  candi- 
date may  acquire  experience  in  public  affairs,  and  at 
the  same  time  become  known  to  his  countrymen.  By 
requiring,  also,  a  previous  residence  of  fourteen  years 
within  the  United  States,  he  will  be  likely  to  have 
formed  habits  of  attachment  to  his  country  and  devo- 
tion to  its  institutions.  The  residence  contemplated 
by  the  Constitution,  however,  does  not  exclude  per- 
sons who  are  temporarily  abroad  in  the  public  service, 
or  on  their  private  affairs. 


172  AN    EXPOSITION   OF   THE 

Disability  of  the  President. 

281.  In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to 
discharge  the  powers  and  duties  of  the  office,  the 
same  devolves  on  the  Vice-President,  and  the  Con- 
gress may  by  law  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President 
and  Vice-President,  declaring  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed  or  a  President  be 
elected. 

282.  In  pursuance  of  the  constitutional  provision, 
Congress  have  provided  that  in  case  of  the  removal, 
death,  resignation,  or  inability  of  the  President  and 
Vice-President,  the  President  of  the  Senate  pro 
tempore,  and  in  case  there  shall  be  no  President  of 
the  Senate,  then  the  Speaker  of  the  House  of  Repre- 
sentatives, for  the  time  being,  shall  act  as  President, 
until  the  disability  be  removed  or  a  President  shall 
be  elected. 

283.  When  the  Vice-President  succeeds  to  the 
office  of  President,  upon  the  removal,  death,  or  resig- 
nation of  the  latter,  he  discharges  its  duties  until  the 
close  of  the  term  for  which  the  President  was  elected. 
But  when  he  succeeds  to  the  office  upon  the  inability 
of  the  President,  he  discharges  its  powers  and  duties 


CONSTITUTION   OF   THE   UNITED   STATES.  173 

only  so  long  as  such  inability  continues.  On  the  other 
hand,  when  the  offices  of  President  and  Vice-President 
both  become  vacant,  Congress  have  provided  that  a 
new  election  shall  take  place.  Meanwhile  the  Pre- 
sident of  the  Senate  pro  tempore,  or,  if  there  be  no 
President  of  the  Senate,  then  the  Speaker  of  the 
House  of  Representatives,  acts  as  President. 

284.  Congress  have  also  provided  that  the  only 
evidence  of  a  refusal  to  accept,  or  of  a  resignation 
of  the  office  of  President  or  Vice-President  shall  be 
an  instrument  in  writing  declaring  the  same,  and 
subscribed  by  the  person  refusing  to  accept  or  resign- 
ing, as  the  case  may  be,  and  delivered  into  the  office 
of  the  Secretary  of  State. 

285.  In  order  to  provide  for  the  exigency  of  a 
vacancy  in  the  office  of  President  during  the  recess 
of  Congress,  it  has  become  usual,  as  we  have  already 
seen  (sec.  76),  for  the  Vice-President,  a  few  days 
before  the  termination  of  each  session  of  Congress, 
to  vacate  the  chair  of  the  Senate,  to  enable  that 
body  to  elect  a  President  pro  tempore. 

His  Salary. 

286.  The  Constitution  declares  that  the  President 
shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation which  shall  neither  be  increased  nor  dimi- 
nished  during   the   period  for  which   he   shall  have 

15* 


174  AN    EXPOSITION   OF   THE 

been  elected,  and  he  shall  not  receive  within  that 
period  any  other  emolument  from  the  United  States, 
or  any  of  them. 

287.  In  the  first  term  of  Washington's  administra- 
tion the  salary  of  the  President  was  fixed  at  the  sum 
of  twenty-five  thousand  dollars  per  annum.  This  sum, 
together  with  the  use  of  the  Presidential  mansion  and 
furniture,  was  deemed  adequate  to  the  becoming  sup- 
port of  the  President.  No  change  was  ever  made  in 
respect  thereto,  until  March  third,  eighteen  hundred 
and  seventy-three,  when  Congress  enacted  that  on  and 
after  the  fourth  day  of  March  ensuing,  the  President 
should  receive  in  full,  for  his  services  during  the  term 
for  which  he  had  been  elected,  the  sum  of  fifty  thou- 
sand dollars  per  annum,  payable  monthly.  By  the 
same  act,  the  salary  of  the  Vice-President  was  in- 
creased from  eight  to  ten  thousand  dollars  per  annum. 

288.  A  salary  should  be  granted  the  President, 
otherwise  persons  of  moderate  fortunes  might  be 
deterred  from  accepting  the  office,  however  well 
qualified  in  other  respects  to  perform  its  duties ;  or, 
on  the  other  hand,  be  impeded  in  their  performance 
by  pecuniary  difficulties,  and  exposed  to  unworthy 
temptations  in  consequence  of  them.  Congress  should 
not  have  the  power  to  increase  or  diminish  this  salary 
during  the  period  for  which  the  President  was  elected, 
because  his  independence  would  be  thus  endangered 
or  destroyed.     In  order  to  prevent  a  diminution  of 


CONSTITUTION    OF   THE    UNITED   STATES.  175 

his  salary  on  the  one  hand,  or  to  obtain  its  augmenta- 
tion on  the  other,  he  would  be  apt  to  take  the  will 
of  Congress  for  his  guide,  instead  of  performing  his 
duties  in  a  firm,  impartial  manner.  It  has  been  justly 
remarked  that  a  control  over  a  man's  living  is,  in 
most  cases,  a  control  over  his  actions. 

His  Oath. 

289.  Before  entering  upon  the  execution  of  his 
office,  the  President  is  required  to  take  the  following 
oath  : — "  I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  President  of  the  United 
States  ;  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United 
States." 

His  Powers. 

290.  The  President  is  Commander-in-Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the 
militia  of  the  several  states,  when  called  into  the 
actual  service  of  the  United  States  ;  he  may  require 
the  opinion,  in  writing,  of  .the  principal  officer  in 
each  of  the  executive  departments  upon  any  subject 
relating  to  the  duties  of  their  respective  offices  ;  and 
he  has  power  to  grant  reprieves  and  pardons  for 
oifences  against  the  United  States,  except  in  cases 
of  impeachment. 


176  AN    EXPOSITION    01    THE 


Commander-in-Chief  of  the  Army. 

291.  Experience  has  demonstrated  that  the  success 
of  military  and  naval  operations  essentially  depend 
upon  the  vigor,  promptitude,  and  energy  with  which 
they  are  executed,  and  that  these  qualities  are  most 
likely  to  be  displayed  where  the  command  is  intrusted 
to  a  single  person.  Hence  the  propriety  of  confiding 
the  command  of  the  public  force  to  the  President. 
When  the  legislative  authority  has  declared  war,  the 
President,  to  whom  its  execution  is  confided,  is  bound 
to  carry  it  into  eifect.  He  has  a  discretion  vested  in 
him  as  to  the  manner  and  extent ;  but  he  cannot  law- 
fully transcend  the  rules  of  warfare  established  among 
civilized  nations. 

292.  The  President  is  not  obliged,  in  person,  to 
take  the  command  of  the  army,  but  he  may  delegate 
his  right  to  another  officer ;  nor  is  he  obliged  to 
command,  in  person,  the  militia  when  they  are 
called  into  the  public  service,  but  may  confer  the 
chief  command  upon  another.  In  his  capacity  of 
commander-in-chief  of  the  army  and  navy,  he  may 
establish  rules  and  regulations  for  their  government ; 
and  the  rules  and  orders  emanating  from  the  War  and 
Navy  Departments  are  to  be  considered  as  emanating 
from  him. 


CONSTITUTION    OF   THE   UNITED   STATES.  177 

293.  He  has  no  power  to  initiate  or  declare  war 
either  against  a  foreign  nation  or  a  domestic  state.  But 
by  Acts  of  Congress  he  is  authorized  to  call  out  the 
militia  and  use  the  military  and  naval  forces  of  the 
United  States  in  case  of  invasion  by  foreign  nations,  and 
to  suppress  insurrection  against  the  government  of  a  state 
or  of  the  United  States.  If  a  war  be  made  by  invasion 
of  a  foreign  power  the  President  is  bound  to  resist  force 
by  force,  and  without  waiting  for  any  special  legislative 
authority.  And  whether  the  hostile  force  be  a  foreign 
invader,  or  states  organized  in  rebellion,  it  is  none  the 
less  a  war,  though  the  declaration  of  it  be  unilateral. 
In  the  latter  case  he  may  accord  to  such  states  the  char- 
acter of  belligerents,  and  proclaim  a  blockade  of  their 
ports.  He  may  too  employ  secret  agents  to  enter  the 
hostile  lines  to  obtain  information,  and  pay  them  out  of 
the  contingent  funds  under  his  control.  He  may,  also, 
in  case  of  war,  whether  foreign  or  civil,  establish  a  pro- 
visional government,  and  courts  in  the  hostile  territory 
occupied  by  the  military  forces  of  the  United  States,  and 
the  lawful  acts  of  such  government,  and  the  judgments 
and  decrees  of  such  courts  will  be  upheld.  And  Congress 
has  power,  upon  the  close  of  the  war,  and  the  dissolution 
of  the  Provisional  Court,  to  provide  for  the  transfer  of 
cases  pending  in  that  court,  and  of  its  judgments  and 
decrees,  to  the  proper  courts  of  the  United  States. 

M 


178  AN    EXPOSITION    OF   THE 

Executive  Departments, 

294.  To  enable  the  President  to  perform  the  vari- 
ous important  duties  devolving  on  him,  Congress  have 
at  different  times  created  executive  departments,  to 
which  are  allotted  functions  peculiar  to  each.  These 
departments  are  now  six  in  number,  and  are  desig- 
nated as  follows : — First,  Department  of  State  ; 
secondly,  Department  of  War ;  thirdly,  Department  of 
the  Treasury;  fourthly,  Department  of  Justice;  fifthly, 
Post-Office  Department;  sixthly,  Department  of  the 
Navy ;  seventhly,  Department  of  the  Interior. 

295.  These  departments  are  aids  and  instruments 
by  which  the  executive  authority  of  the  government 
is  administered.  The  chief  officer  of  each  is  termed 
Secretary,  and  the  name  of  the  department  over 
which  he  presides  at  once  suggests  the  character  of 
the  duties  confided  to  him. 

296.  Thus  the  Secretary  of  State,  in  subordination 
to  the  President,  has  the  general  charge  of  all  matters 
relating  to  our  foreign  affairs ;  the  Secretary  of  War, 
of  all  matters  relating  to  the  control  and  disposition 
of  the  army,  the  erection  of  fortifications,  and  the 
purchase  of  arms  and  munitions  ;  the  Secretary  of 
the  Navy,  of  all  similar  matters  relating  to  the  naval 
establishment  of  the  United  States;   the  Secretary 


CONSTITUTION    OF   THE    UNITED   STATES.  179 

of  the  Treasury  has  charge  of  the  finances  of  the 
government,  and  is  required,  at  the  commencement 
of  every  session,  to  lay  before  Congress  a  report  on 
the  subject  of  finance,  containing  estimates  of  the 
public  revenue  and  public  expenditures,  and  plans  for 
increasing  the  revenue ;  and  the  Secretary  of  the  Inte- 
rior, has  supervision  of  the  patent,  laud,  pension,  and 
census  offices ;  and  also  of  Indian  affairs,  mines,  and  the 
public  buildings. 

297.  The  Postmaster-General,  as  we  have  elsewhere 
remarked,  has  charge  of  the  postal  affairs  of  the  coun- 
try ;  and  the  law  officer  of  the  government,  termed  the 
Attorney-General,  is  bound  to  prosecute  and  conduct 
all  suits  in  which  the  United  States  are  a  party,  and  to 
give  his  advice  and  opinion,  when  required  by  the  Presi- 
dent, or  when  requested  by  the  heads  of  any  of  the 
departments,  touching  any  matters  that  may  concern 
their  departments. 

298.  The  Secretaries  of  the  several  departments  are 
appointed  by  the  President,  with  the  advice  and  consent 
of  the  Senate,  and  by  recent  legislation,  are  only  removable 
with  the  like  advice  and  consent.  He  may  require  their 
opinion  in  writing  upon  any  subject  relating  to  the 
duties  of  their  respective  offices ;  but  in  practice  he 
assembles  them  as  a  cabinet  council.  Hence  they 
are  spoken  as  the  Cabinet.  This  means,  however,  that 
they  are  an  advisory  body  whom  the  President  may  con- 
vene or  consult  at  his  discretion.  The  political  respon- 
sibility of  their  official  acts  is  upon  him,  but  they  are 


180  AN    EXPOSITION   OF    THE 

individually  responsible  as  to  any  duties  specially  imposed 
on  them  by  law. 

299.  Though  the  President  may  require  the  written 
opinion  of  his  Cabinet,  as  above  mentioned,  he  has  no 
such  authority  with  respect  to  the  judiciary.  The 
judges  can  only  be  called  upon  to  decide  controver- 
sies brought  before  them  in  legal  form,  and  are  bound 
to  abstain  from  extra-judicial  opinions  upon  questions 
of  law. 

Reprieves  and  Pardons. 

300.  The  President  has  power  to  grant  reprieves 
and  pardons  for  offences  against  the  United  States, 
except  in  cases  of  impeachment. 

301.  A  reprieve  is  a  suspension  of  the  punishment 
awarded  to  an  oifence  for  a  designated  time ;  a  pardon 
is  a  total  remission  of  such  punishment,  and  may  be 
granted  before  as  well  as  after  trial  and  conviction. 
The  President  has  also  power  to  order  a  nolle  pro- 
sequi in  any  stage  of  a  criminal  proceeding  in  the 
name  of  the  United  States.  He  may  pardon  too 
either  absolutely  or  conditionally,  provided  the  con- 
dition be  compatible  with  the  genius  of  the  Constitu- 
tion and  laws.  The  power  to  pardon  is  not  limited 
to  any  particular  grade  of  offence ;  but,  with  one  or 
two  exceptions,  which  we  shall  presently  notice,  ex- 
tends to  all,  and  includes  the  remission  of  fines, 
penalties,   and   forfeitures.      And    as   it    conferred    by 


CONSTITUTION    OF    THE   UNITED    STATES.  181 

the  Constitution,  Congress  can  impose  no  limitations 
or  restrictions  upon  its  exercise. 

302.  The  prominent  exception  to  the  President's 
power  of  pardoning  is  in  cases  of  impeachment,  and 
he  is  restrained  in  those  cases  lest  he  should  screen 
from  punishment  his  favorites  or  dependants,  who 
might  be  convicted  of  political  or  official  oifences.  It 
is  thought  too  that  he  would  not  have  the  power  to 
pardon  a  person  sentenced  for  a  contempt  of  either 
branch  of  Congress,  though  it  is  admitted  that  he 
may  pardon  for  a  contempt  of  court. 

Treaty  Power. 

303.  The  President  has  also  the  power,  by  and 
with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present 
concur. 

304.  Under  this  power  the  President,  with  the- 
sanction  of  the  Senate,  may  make  treaties  of  peace,, 
commerce,  alliance,  and  of  every  other  description,, 
subject  to  only  one  limitation,  namely,  that  the  trea- 
ties thus  made  shall  not  violate  the  principles  of  the 
Constitution.  For  example,  the  Constitution  pro- 
vides that  no  title  of  nobility  shall  be  granted  by  the 
United  States.  If,  therefore,  the  President  should 
negotiate  a  treaty,  one  of  the  stipulations  of  which 
provided  that  the  United  States  should  grant  titles 
of  nobility,  such  stipulation  wrould  be  absolutely  void 


182  AN    EXPOSITION   OF   THE 

305.  In  England  the  power  to  make  treaties  is 
vested  in  the  king.  His  authority  in  this  respect  is 
absolute — the  treaties  he  makes  not  being  subject  to 
the  revision  and  ratification  of  either  house  of  Par- 
liament. In  the  ancient  republics,  this  power  was 
usually  lodged  in  the  legislative  branch  of  the  govern- 
ment. At  Athens  and  Rome,  for  example,  the  as- 
semblies of  the  people  made  the  determinations 
respecting  peace  and  war. 

306.  The  Constitution  of  the  United  States  com- 
bines the  advantages  of  both  systems.  By  making 
the  President  the  organ  of  communication  with  foreign 
powers,  and  the  agent  in  the  negotiation  of  treaties, 
secrecy  and  despatch  are  secured,  which  are  essential 
in  order  to  profit  by  new  and  unexpected  information, 
or  new  and  unexpected  changes  in  the  fortune  of 
affairs.  On  the  other  hand,  by  making  the  validity 
of  his  negotiations  depend  upon  the  consent  of  two- 
thirds  of  the  Senators  present,  a  guard  is  provided 
against  an  abuse  of  the  trust  thus  confided  to  him. 

307.  When  a  treaty  has  been  adjusted  under  the 
direction  of  the  President,  it  is  laid  before  the  Senate 
for  ratification.  They  deliberate  upon  it  in  what  is 
termed  executive  session,  that  is,  in  secret,  with  closed 
doors.  They  may  wholly  reject  it,  or  ratify  a  part 
of  its  stipulations,  rejecting  others,  or  recommend 
additional  articles.     If  alterations  are  made,  both  the 


CONSTITUTION    OF   THE    UNITED   STATES.  183 

President  and  the  foreign  government  must  assent  to 
them  before  the  treaty  becomes  effective  and  binding. 
And  even  where  no  alterations  are  proposed  by  the 
Senate,  and  they  ratify  a  treaty  in  full,  the  Presi- 
dent may  still  withhold  his  assent  to  it.  The  Consti- 
tution does  not  determine,  when  treaties  and  acts  of 
Congress  are  in  conflict,  which  shall  prevail;  but  judi- 
cially, it  is  held  that  a  treaty  may  supersede  a  prior 
act  of  Congress,  and  an  act  of  Congress  may  super- 
sede a  prior  treaty. 

Nominations  to  Office. 

308.  The  President  nominates,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoints  am- 
bassadors, other  public  ministers,  and  consuls,  judges 
of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  otherwise 
provided  for  in  the  Constitution,  and  which  shall  be 
established  by  law ;  but  Congress  may,  by  law,  vest 
the  appointment  of  such  inferior  officers  as  they  think 
proper  in  the  President  alone,  in  the  courts  of  law, 
or  in  the  heads  of  departments. 

309.  The  President  possesses  the  power  to  nego- 
tiate treaties,  and,  with  obvious  propriety,  appoints 
the  ministers  through  whom  the  negotiations  are  Car- 
ried  on.  He  may  appoint  diplomatic  agents  of  any 
rank,  at  any  place,  and  at  any  time  in  his  discretion, 


J  84  AN    EXPOSITION   OF   THE 

and  this  power,  it  seems,  cannot  be  limited  by  Congress. 
He  is  also  charged  with  the  execution  of  the  laws,  and 
with  equal  propriety  appoints  the  officers  who  are  to  aid 
him  in  the  performance  of  his  duty.  But  this  power 
of  appointment  cannot  be  exercised  without  the  advice 
and  consent  of  the  Senate,  except  in  the  case  of 
inferior  officers,  whose  appointments  Congress  may, 
by  law,  vest  solely  in  the  President,  or  in  the  courts 
of  law,  or  in  the  heads  of  departments. 

310.  Knowing,  therefore,  that  the  character  and 
fitness  of  the  persons  whom  he  may  select  for  office 
are  to  be  scrutinized  by  the  Senate,  he  will  naturally 
be  more  cautious  in  making  the  selection.  And  if, 
from  misinformation  or  error,  he  nominates  unsuitable 
persons,  the  Senate  can  save  the  public  from  the 
consequences  likely  to  follow  a  bad  appointment,  by 
rejecting  the  nomination.  The  constitutional  agency 
of  the  Senate  in  appointments  to  office,  however,  is 
solely  confined  to  a  simple  affirmation  or  rejection  of 
the  President's  nominations ;  they  cannot  originate 
an  appointment. 

311.  After  the  President  has  nominated,  and  the 
Senate  confirmed  his  nomination,  he  may  still  with- 
hold the  appointment  from  the  nominee.  The  ap- 
pointment is  not  final  and  complete  until  the  Presi- 
dent has  signed  the  commission.  It  has  been  thought 
even  that  it  was  not  complete  until  delivery  of  the 


CONSTITUTION   OF    THE    UNITED    STATES.  18*5 

commission ;  but  the  Supreme  Court  have  held  other- 
wise. 

Removals  from  Office. 

312.  The  power  of  the  President  to  appoint  to 
office,  with  the  advice  and  consent  of  the  Senate,  was 
early  in  the  history  of  the  government  construed  to 
mean  that  he  might  remove,  at  his  pleasure,  all  officers 
appointed  and  commissioned  by  him,  unless  the  Con- 
stitution itself  had  fixed  their  tenure  of  office.  The 
Constitution,  for  example,  provides  that  the  judges  of 
the  courts  of  the  United  States  shall  hold  their  offices 
during  good  behavior.  These  the  President  cannot 
remove;  but  most  of  the  officers  appointed  by  him, 
according  to  the  long  established  doctrine  and  prac- 
tice, whether  civil  or  military,  were  removable  at  his 
pleasure.  But  Congress,  by  the  act  of  fifth  April, 
eighteen  hundred  and  sixty-nine,  has  provided  that 
civil  officers,  appointed  by  and  with  the  advice  and 
consent  of  the  Senate,  shall  not  be  removed,  unless 
with  the  like  advice  and  consent. 

Power  to  Fill  Vacancies. 

313.  The  President  has  power  to  fill  up  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  expire  at  the  end  of  their 
next  session. 

314.  As  vacancies  are  continually  occurring  in  the 

16* 


186  AN   EXPOSITION    OF    THE 

public  service  from  death,  resignation,  or  expiration 
of  office,  the  President  is  empowered  to  fill  such 
vacancies.  Were  it  otherwise  it  would  be  necessary, 
in  order  to  provide  for  the  appointment  of  officers,  to 
keep  the  Senate  in  perpetual  session,  or  summon  them 
together  at  great  expense  and  inconvenience  when- 
ever a  vacancy  should  occur. 

315.  The  appointments  thus  made  in  the  recess  of 
the  Senate,  expire  at  the  end  of  their  next  session. 
If,  when  the  Senate  assembles,  the  President  should, 
with  their  concurrence,  appoint  the  same  person  he 
had  appointed  in  the  recess,  this  would  be  a  new 
appointment,  and  not  a  continuation  of  the  old  one. 
So  that  the  bond  for  the  faithful  discharge  of  duties 
under  the  first  appointment,  would  not  be  applicable 
to  acts  done  under  the  second. 

316.  If  the  Senate,  on  the  other  hand,  should  not 
approve  the  nomination  of  an  officer  who  had  been 
appointed  in  the  recess,  his  commission  is  not  thereby 
determined,  but  continues  in  force  until  the  end  of 
the  session,  unless  sooner  determined  by  the  Presi- 
dent. By  recent  legislation,  Congress  has  declared 
that  if  no  appointment,  by  and  with  the  advice  and 
consent  of  the  Senate  during  its  next  session,  be  made 
to  an  office  wThich  had  become  vacant  and  been  filled 
during  the  recess  of  the  Senate,  then  such  office  shall 
remain  in  abeyance,  without  any  salary,  fees,  or  emol- 
uments attached  thereto,  until  such  time  as  it  is  filled 
with  the  advice  and  consent  of  the  Senate. 


CONSTITUTION   OF   THE    UNITED   STATES.  187 

317.  Again,  if  an  office  should  be  created  by  law 
while  the  Senate  is  in  session,  and  the  President 
should  neglect  to  make  any  nomination  to  it,  he  could 
not,  without  special  authority,  appoint  to  such  office 
after  the  adjournment  of  the  Senate,  because  the 
vacancy  does  not  happen  during  the  recess. 

His  Communications  to  Congress. 

318.  The  President  must,  from  time  to  time,  give 
to  the  Congress  information  of  the  state  of  the  Union, 
and  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary  and  expedient. 

319.  In  obedience  to  this  injunction  of  the  Consti- 
tution, the  President,  annually,  at  the  opening  of  each 
session  of  Congress,  addresses  a  written  message  to 
them  containing  information  respecting  the  foreign 
and  domestic  affairs  of  the  country,  together  with 
such  recommendation  of  measures  as  he  may  deem 
necessary  and  proper.  He  also  sends  them  special 
messages  on  other  occasions  whenever  he  deems  it 
necessary.  President  Washington  and  President 
Adams  were  in  the  habit  of  meeting  both  Houses  in 
person,  at  the  opening  of  each  session  of  Congress, 
and  delivering  a  speech  to  them ;  but  upon  the  acces- 
sion of  Mr.  Jefferson  to  the  Presidency  the  practice 
was  discontinued  and  written  messages  substituted. 


188  AN    EXPOSITION    OF   THE 


His  Power  to  Convene  Congress,  &c. 

320.  The  President  may,  on  extraordinary  occa- 
sions, convene  both  Houses,  or  either  of  them,  and 
in  case  of  disagreement  between  them,  with  respect 
to  the  time  of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  shall  think  proper. 

321.  The  propriety  of  this  power  speaks  for  itself. 
Unexpected  exigencies  constantly  occur  in  the  affairs 
of  nations  which  demand  immediate  action,  and  when 
this  action  should  require  the  co-operation  of  Con- 
gress, the  public  interest  might  suffer  serious  detri- 
ment if  that  co-operation  could  not  be  obtained  in 
advance  of  the  regular  session. 

322.  Of  nearly  equal  necessity  as  the  power  to 
convene  Congress  on  extraordinary  occasions,  is  the 
power  to  adjourn  them  in  cases  of  disagreement. 
When  they  cannot  agree  as  to  the  time  of  adjourn- 
ment, the  interposition  of  the  President  at  once  puts 
an  end  to  the  controversy,  and  thus  prevents  distrac- 
tion in  the  public  councils. 

Receives  Ambassadors. 

323.  The  President  receives  ambassadors  and  other 
public  ministers ;  that  is,  they  present  their  creden- 
tials to  him,  and  receive  his  official  recognition  of 


CONSTITUTION   OF   THE   UNITED   STATES.  189 

their  character.  Until  this  be  done  they  cannot 
enter  upon  the  performance  of  their  duties.  The 
President  is  the  representative  of  his  country  in  all 
diplomatic  negotiations,  and  naturally  is  intrusted 
with  the  power  to  appoint  and  receive  the  agents 
through  whom  such  negotiations  are  carried  on.  It 
will  be  observed,  however,  that  he  appoints  with  the 
concurrence  of  the  Senate  (sec.  808,  et  seq.),  but  re- 
ceives without  their  participation.  The  reason  of 
this  difference  is,  probably,  to  be  found  in  the  fact, 
that  it  would  be  attended  with  too  much  inconve- 
nience to  summon  the  Senate  together  whenever  a 
foreign  minister  should  be  sent  hither,  in  order  that 
he  might  be  received  and  enter  upon  the  discharge 
of  his  duties. 

324.  The  President  may,  in  his  discretion,  refuse 
to  receive  a  foreign  minister  ;  but  if  his  refusal  should 
be  for  inadequate  cause,  and  unaccompanied  with 
proper  explanations,  it  might  bring  on  hostilities. 
He  may  refuse  to  receive  him  upon  the  ground  of  his 
former  bad  character,  or  former  offensive  conduct,  or 
because  the  special  subject  of  the  embassy  is  not 
proper  or  not  convenient  for  discussion ;  or  because 
the  state  from  which  he  is  sent  may  be  divided  and 
distracted  by  civil  wars,  so  as  to  render  it  inexpe- 
dient to  acknowledge  the  supremacy  of  either  party. 

325.  The   President  may  also,  when  the  language 


190  AN    EXPOSITION    OF  THE 

or  conduct  of  a  foreign  minister  is  inadmissible, 
suspend  his  functions  by  a  refusal  to  treat  with  him, 
or  make  application  to  his  sovereign  for  his  recall, 
or  dismiss  him  and  require  him  to  depart  within  a 
reasonable  time.  It  is  said,  too,  that  where  the 
safety  of  the  state  absolutely  requires  it,  force  may 
be  applied  to  confine  or  send  him  away. 

326.  This,  however,  is  all  that  can  be  done.  A 
foreign  minister  may  insult  the  government  to  which 
he  is  deputed,  or  violate  its  laws,  and  he  cannot  be 
made  amenable  either  to  its  civil  or  criminal  jurisdic- 
tion. By  the  law  of  nations,  from  which  the  privi- 
leges of  foreign  ministers  derive  their  origin  and 
support,  he  is  exempted  from  all  allegiance,  and  from 
all  responsibility  to  the  laws  of  the  country  to  which 
he  is  sent ;  and  this  immunity  extends  to  the  attend- 
ants attached  to  his  person. 

327.  To  give  effect  to  this  principle  of  the  law  of 
nations,  Congress,  by  an  Act  passed  in  1790,  declared 
that  all  writs  and  process  issued  out  of  any  court  of 
the  United  States,  or  of  a  particular  state,  or  by  any 
judge  or  justice,  whereby  any  ambassador  or  other 
public  minister  of  any  foreign  prince  or  state,  or  any 
servant  of  any  such  ambassador  or  minister,  might  be 
arrested,  or  his  goods  and  chattels  be  seized,  should 
be  deemed  utterly  void. 

328.  Public  ministers  are  divided  into  four  classes: 


CONSTITUTION   OF   THE   UNITED   STATES.  191 

First,  ambassadors  and  papal  legates  or  nuncios ; 
second,  envoys,  ministers,  or  others  accredited  to 
sovereigns ;  third,  ministers  resident  accredited  to 
sovereigns ;  fourth,  charges  d'affaires  accredited  to 
the  minister  of  foreign  affairs.  Ambassadors  are 
considered  as  peculiarly  representing  the  sovereign 
or  state  by  whom  they  are  delegated,  and  entitled  to 
the  same  honors  to  which  their  constituent  would  be 
entitled,  were  he  personally  present.  The  right 
of  sending  ambassadors  is  exclusively  confined  to 
crowned  heads,  the  great  republics,  and  other  states 
entitled  to  royal  honors.  So  far,  however,  as  the 
nature  of  their  respective  functions  is  concerned, 
there  is  no  essential  difference  between  public  mini& 
ters  of  the  first  and  second  class.  The  United  States 
have  always  appointed  ministers  of  the  second  class. 

329.  Though  the  President  is  expressly  empowered 
to  appoint  consuls,  he  is  not  expressly  empowered  to 
receive  them.  He  has,  however,  always  exercised  the 
power,  it  being  deemed  an  incident  of  his  authority  ; 
and  foreign  consuls  have  never  been  allowed  to  act  as 
such  without  his  exequatur,  or  written  declaration 
authorizing  them  to  perform  the  duties  of  their  office. 

330.  A  consul  is  a  commercial  agent,  and  not  a 
public  minister  in  the  sense  of  the  law  of  nations.  He 
is  not,  therefore,  entitled  to  the  immunities  which 
that  law  confers  upon  such  ministers.     Both  in  civil 


192  AN    EXPOSITION    OF   THE 

and  criminal  cases  he  is  subject  to  the  laws  of  the 
country  in  which  he  resides,  equally  with  all  other 
persons.  If  guilty  too  of  illegal  or  improper  conduct, 
his  exequatur  may  be  revoked,  which  puts  an  end  to 
his  functions. 

Executes  the  Laws. 

331.  It  is  the  duty  of  the  President  to  take  care 
that  the  laws  are  faithfully  executed. 

332.  The  very  nature  of  the  executive  office  would 
seem  to  imply  that  the  President  should  perform  this 
function  of  executing  the  laws.  But  it  is  expressly 
enjoined  on  him  by  the  Constitution,  and  he  may 
employ  the  forces  of  the  United  States  in  perform- 
ing it.  Accordingly,  when  combinations  exist  among 
the  citizens  of  one  or  more  of  the  states  to  obstruct 
or  defeat  the  execution  of  acts  of  Congress,  and  hos- 
tilities thence  arise,  and  assume  the  dimensions  of  war, 
it  is  the  duty  of  the  President  to  prosecute  opposing 
hostilities,  offensive  as  well  as  defensive,  and  upon  a 
scale  to  suit  the  exigencies  of  the  occasion.  And  he 
cannot,  in  the  exercise  of  his  powers,  be  restrained  by 
injunction,  from  carrying  into  effect  an  act  of  Con- 
gress, upon  an  allegation  that  such  act  is  unconstitu- 
tional. Nor  can  he  be  arrested,  imprisoned,  or  de- 
tained, while  discharging  the  duties  of  his  office;  in 
all  civil  cases,  his  person  possesses  an  official  inviola- 
bility. 


CONSTITUTION   OF   THE   UNITED   STATES.  193 


Commissions  Officers. 

333.  It  is  also  the  duty  of  the  President  to  com- 
mission all  the  officers  of  the  United  States. 

334.  A  commission  is  the  official  certificate  or 
written  evidence  of  an  appointment  to  office.  It  is 
signed  by  the  President,  and  if  a  civil  commission,  it 
is  made  the  duty  of  the  Secretary  of  State  to  affix  to 
it  the  seal  of  the  United  States. 

May  he  impeached. 

335.  We  have  seen  elsewhere  (sec.  78)  that  the 
President,  Vice-President,  and  all  civil  officers  of  the 
United  States  are  to  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  treason,  bribery,  or 
other  high  crimes  and  misdemeanors.  It  is  unneces- 
sary, therefore,  to  recur  to  the  subject  again. 

336.  We  have  thus  concluded  our  survey  of  the 
office  of  President ;  and  we  shall  now  proceed  to 
investigate  the  powers  and  duties  of  the  judicial 
department  of  the  government. 

17  N 


194  AN    EXPOSITION   OF   THE 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES. 

In  whom  vested, 

337.  The  judicial  power  of  the  United  States  is 
vested  in  one  Supreme  •  Court,  and  in  such  inferior 
courts  as  Congress  may,  from  time  to  time,  ordain 
and  establish. 

338.  The  object  of  the  Constitution  was  to  consti- 
tute three  great  departments  of  government :  the 
legislative,  the  executive,  and  the  judicial  depart- 
ment. The  first  is  to  pass  laws,  the  second  to  ap- 
prove and  execute  them,  and  the  third  to  expound 
and  enforce  them. 

The  Supreme  Court 

339.  The  Supreme  Court  was  instituted  by  the 
Constitution  itself;  but  its  organization  was  left  to 
Congress.  As  at  present  organized,  it  consists  of  a 
Chief  Justice  and  eight  Associate  Justices,  any  six 
of  whom  make  a  quorum,  and  it  holds  one  term  annu- 
ally, at  the  seat  of  government,  and  such  adjourned 
or  special  terms  as  it  may  find  necessary. for  the  des- 
patch of  business,  commencing,  formerly,  on  the  first 
Monday  of  December;  but  now  on  the  second  Monday 


CONSTITUTION   OF   THE   UNITED   STATES.  195 

of  October  of  each  year.  The  salary  of  the  Chief 
Justice  is  ten  thousand  five  hundred  dollars  per 
annum,  that  of  the  Associate  Justices  ten  thousand 
dollars  per  annum. 

340.  The  importance  of  a  supreme  tribunal,  in 
which  may  meet  and  terminate  appeals  from  inferior 
judicatures,  is  very  obvious.  Uniformity  of  decision 
is  thus  secured,  and  the  inferior  courts  kept  within 
the  limits  of  their  jurisdiction. 

Inferior  Courts. 

341.  While  the  Constitution  imperatively  requires 
that  there  shall  be  one  Supreme  Court,  it  is  left  to 
Congress  to  determine  the  number  of  inferior  courts 
which  they  will  establish.  They  are  bound  to  create 
some  inferior  courts,  because  the  Constitution  con- 
templates cases  of  which  only  such  courts  can,  in  the 
first  instance,  take  cognisance ;  but  whether  one  or 
more,  Congress  must,  in  their  discretion,  decide. 


196  AN    EXPOSITION    OF   THE 


Circuit  Courts. 

342.  In  the  exercise  of  this  discretion,  Congress 
have  established  Circuit  and  District  Courts.  Circuit 
Courts  are  established  in  each  of  the  nine  great  cir- 
cuits into  which  the  United  States  are  divided.  Each 
circuft  is  composed  of  a  certain  number  of  districts ; 
the  states  of  Rhode  Island,  Massachusetts,  New 
Hampshire,  and  Maine,  for  example,  being  districts, 
and  together  constituting  the  first  circuit. 

343.  In  each  of  these  districts  there  are  annually 
held  two  Circuit  Courts,  which  consist  of  a  judge  of 
the  Supreme  Court,  a  judge  of  the  Circuit  Court,  and 
a  judge  of  the  District  Court.  The  judge  of  the  Su- 
preme Court,  however,  is  not  obliged  to  attend  more 
than  one  term  of  the  Circuit  Court  in  any  district  of 
his  circuit  during  any  period  of  two  years.  The  cir- 
cuit judge  resides  in  his  circuit,  and  possesses  the  same 
power  and  jurisdiction  therein  as  the  justice  of  the 
Supreme  Court  allotted  to  the  circuit.  The  powers 
of  the  justices  of  the  Supreme  Court,  as  judges  of  the 
Circuit  Court,  are  unaffected  by  the  act  (April  10, 
1869)  creating  the  circuit  judges,  except  that  the  latter 
have  the  appointment  of  the  clerks  of  said  court. 

Jurisdiction  of  the  Circuit  Courts. 

344.  The  jurisdiction  of  the  federal  courts  depends 
exclusively  on  the  Constitution  and  laws  of  the  United 


CONSTITUTION   OF    THE    UNITED    STATES.  197 

States.  And  as  Congress  have  the  power  to  establish 
inferior  courts,  they  have,  as  a  necessary  consequence, 
the  right  to  define  their  respective  jurisdictions. 
Congress,  accordingly,  have  vested  the  Circuit  Courts 
with  original  jurisdiction,  concurrently  with  the 
courts  of  the  several  states,  of  all  suits  of  a  civil 
nature,  where  the  matter  in  dispute  exceeds,  five 
hundred  dollars,  exclusive  of  costs,  and  the  United 
States  are  plaintiffs,  or  an  alien  is  a  party,  or  the 
suit  is  between  a  citizen  of  the  state  where  the  suit  is 
brought,  and  a  citizen  of  another  state.  They  have, 
too,  original  jurisdiction  of  all  suits  arising  under  any 
law  of  the  United  States  relative  to  copyrights,  and 
the  rights  growing  out  of  inventions  and  discoveries. 
345.  They  have  also  exclusive  jurisdiction  of  all 
crimes  and  offences  against  the  United  States,  the 
punishment  of  which  is  capital,  and  concurrent  juris- 
diction with  the  District  Courts  of  all  such  crimes 
and  offences  where  the  punishment  is  not  capital. 
And  they  have  appellate  jurisdiction  from  all  final 
decrees  and  judgments  in  the  District  Courts,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds 
fifty  dollars. 
17* 


198  AN   EXPOSITION   OF   THE 


Jurisdiction  — Original  —  Exclusive —  Concur- 
rent— Appellate. 

346.  By  original  jurisdiction  is  meant  the  right 
vested  in  a  court  to  hear  and  determine  a  cause  in 
the  first  instance.  This  may  be  an  exclusive  or  con- 
current right.  It  is  exclusive  when  the  particular 
cause  can  only  be  brought  before  the  particular  court ; 
and  concurrent  when  it  may  be  brought  in  any  one 
of  two  or  more  courts.  By  appellate  jurisdiction  is 
meant  the  right  vested  in  a  court  to  hear  and  deter- 
mine appeals  from  the  judgment  of  another  court. 
The  Circuit  Courts,  it  will  be  observed,  exercise 
jurisdiction  of  each  description,  that  is,  exclusive, 
concurrent,  and  appellate. 

District  Courts. 

347.  The  United  States  are  at  present  divided  into 
forty-five  districts,  in  each  of  which  is  established  a 
District  Court.  These  districts,  for  the  most  part, 
consist  of  an  entire  state,  though  in  several  of  the 
states  it  has  been  found  necessary  to  constitute  two 
or  more  districts.  A  District  Court  is  composed  of 
a  single  judge,  who  holds  annually  four  stated  terms, 
and  also  special  courts,  in  his  discretion.  In  dis- 
tricts where  the  business  of  the  court  may  require  it 
to  be  done  for  the  purposes  of  justice,  the  judges 


CONSTITUTION   OF   THE   UNITED   STATES.  199 

must  hold  monthly  adjournments  of  the  regular  terms 
for  the  trial  of  criminal  causes. 


Jurisdiction  of  the  District  Courts. 

348.  The  District  Courts  have  concurrent  jurisdic- 
tion with  the  Circuit  Courts  of  all  crimes  and  offences 
against  the  United  States,  the  punishment  of  which 
is  not  capital.  They  have  also  exclusive,  original 
cognisance  of  all  civil  causes  of  admiralty  and  mari- 
time jurisdiction  ;  of  all  seizures  under  the  impost, 
navigation,  or  trade  laws  of  the  United  States,  where 
the  seizures  are  made  upon  the  high  seas,  or  on 
waters  within  their  districts  navigable  from  the  sea 
with  vessels  of  ten  or  more  tons  burthen ;  and  of  all 
other  seizures  made  under  the  laws  of  the  United 
States,  and  also  of  all  suits  for  penalties  and  for- 
feitures incurred  under  those  laws. 

349.  They  have  also  cognisance,  concurrent  with 
the  Circuit  and  state  courts,  of  causes  where  an  alien 
sues  for  a  tort  committed  in  violation  of  the  law  of 
nations,  or  of  a  treaty  of  the  United  States ;  and 
concurrently  with  the  Circuit  Courts,  and  the  courts 
and  magistrates  of  the  several  states,  of  all  suits  at 
common  law  where  the  United  States,  or  any  officer 
thereof,  acting  under  the  authority  of  an  Act  of 
Congress,  shall  sue.  They  have  also  jurisdiction, 
exclusively  of  the  state  courts,  of  all  suits  against 


200  AN   EXPOSITION   OF  TUB 

consuls,  vice-consuls,  except  for  offences  of  a  capital 
nature. 

Clerics. 

350.  The  Supreme,  Circuit,  and  District  Courts 
have  power  to  appoint  clerks ;  and  this  power  of  ap- 
pointment includes  that  of  removal.  These  clerks 
have  the  custody  of  the  seal  and  records,  and  are 
bound  to  sign  and  seal  all  process,  and  seasonably  to 
record  the  decrees,  judgments,  and  determinations  of 
their  respective  courts.  In  addition  to  an  oath  of 
office,  they  are  required  to  give  security  in  the  sum 
of  two  thousand  dollars,  for  the  faithful  discharge  of 
their  duties. 

Marshals. 

351.  The  President  and  Senate  appoint  a  Marshal 
for  each  judicial  district,  whose  duty  it  is  to  attend 
the  District  and  Circuit  Courts  when  sitting  therein, 
and  to  execute,  within  the  district,  all  lawful  precepts 
which  are  directed  to  him,  and  issued  under  the 
authority  of  the  United  States.  He  may  command 
all  necessary  assistance  in  the  execution  of  his  duty, 
and  may  appoint  one  or  more  deputies,  who  are  re- 
movable at  his  pleasure,  as  well  as  at  the  pleasure  of 
the  District  or  Circuit  Courts.  The  Marshal  himself 
is  appointed  for  the  term  of  four  years ;  but  at  the 
same  time,  with  the  concurrence  of  the  Senate,  is  re- 


CONSTITUTION   OF   THE    UNITED   STATES.  201 

movable  at  the  pleasure  of  the  President/  Before 
entering  upon  the  duties  of  his  office,  he  is  obliged  to 
give  security  in  the  sum  of  twenty  thousand  dollars 
for  the  faithful  performance  of  the  same  by  himself 
and  his  deputies,  and,  together  with  his  deputies, 
to  take  an  oath  of  office. 

Tenure  of  Office. 

352.  The  judges  both  of  the  Supreme  and  inferior 
Courts  hold  their  offices  during  good  behavior,  and 
at  stated  times  receive  for  their  services  a  compensa- 
tion which  cannot  be  diminished  during  their  continu- 
ance in  office. 

353.  The  President,  with  the  advice  and  consent 
of  the  Senate,  appoints  the  judges  of  the  Supreme 
and  inferior  Courts ;  but  he  does  not  possess  the 
power  of  removing  them.  Their  tenure  of  office  is 
independent  of  both  government  and  people ;  it 
depends  absolutely  upon  themselves.  Their  continu- 
ance in  office  is  during  good  behavior.  If  they  behave 
properly  they  are  secured  in  their  places  for  life  ;  if 
they  misbehave,  if  they  violate  the  trust  confided  to 
them,  they  may  be  impeached,  and,  if  convicted, 
removed  from  office. 

Their  Salary. 

354.  The  Constitution  has  also  secured  to  the 
judges  a  fixed   provision  for   their   support.     They 


202  AN    EXPOSITION   OF   THE 

receive  at  stated  times  for  their  services  a  compensa- 
tion which  cannot  be  diminished  during  their  con- 
tinuance in  office.  Owing  to  the  fluctuations  in  the 
value  of  money  and  in  the  state  of  society,  it  may 
happen  that  the  salaries  given  to  the  judges  at  one 
time  will  be  inadequate  at  another.  Congress  may, 
therefore,  increase  them  ;  but  they  have  no  power  to 
diminish  them.  Nor  can  a  tax  be  imposed  upon  the 
salary  of  a  judge.  Hence  the  judges  can  never  be 
deterred  from  their  duty  by  the  apprehension  of  being 
placed  in  a  less  eligible  situation. 

Extent  of  the  Judicial  Power, 

355.  The  judicial  power  extends  to  all  cases,  in 
law  and  equity,  arising  under  the  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made  under  their  authority  ;  to  all 
cases  affecting  ambassadors,  other  public  ministers, 
and  consuls  ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction  ;  to  controversies  to  which  the  United 
States  are  a  party ;  to  controversies  between  two  or 
more  states ;  to  controversies  between  a  state,  when 
plaintiff,  and  citizens  of  another  state ;  to  controver- 
sies between  citizens  of  different  states,  and  between 
citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states,  and  between  a  state,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  or 
subjects. 


CONSTITUTION   OF  THE   UNITED  STATES.  203 


Meaning  of  Case. 

356.  A  case,  in  the  sense  of  the  Constitution,  is  a 
controversy  between  parties  which  has  taken  a  shape 
for  judicial  decision.  Cases  in  law  mean  cases  in 
which  relief  is  sought  according  to  the  principles  and 
practice  of  the  common  law  ;  cases  in  equity  mean 
cases  in  which  relief  is  sought  according  to  the  prin- 
ciples and  practice  of  equity  jurisprudence.  A  case 
is  said  to  arise  under  the  Constitution,  or  a  law,  or  a 
treaty  of  the  United  States,  when  its  correct  decision 
depends  upon  the  construction  of  either. 

The  several  Descriptions  of  Cases. 

357.  It  will  be  observed  that  the  Constitution 
extends  the  judicial  power  to  eleven  descriptions  of 
cases : 

First,  To  all  cases  arising  under  the  Constitution. 

Second,  To  all  cases  arising  under  the  laws  of  the 
United  States. 

Third,  To  all  cases  arising  under  treaties  made  by 
their  authority. 

♦    Fourth,    To    all    cases    affecting    ambassadors    or 
other  public  ministers,  and  consuls. 

Fifth,  To  all  cases  of  admiralty  and  maritime 
jurisdiction.       Admiralty  and  maritime  jurisdiction 


204  AN   EXPOSITION   OF  THE 

relates  to  acts  or  injuries  done  upon  the  high  sea,  or 
within  the  ebb  and  flow  of  the  tide,  or  upon  the 
navigable  lakes  and  rivers  of  the  United  States ;  and 
to  contracts,  claims,  and  services  appertaining  to 
commerce  and  navigation.  In  civil  suits  of  admiralty 
and  maritime  jurisdiction  the  proceedings  are  con- 
ducted according  to  the  course  of  the  civil  law,  and 
without  a  jury.  Congress  may,  however,  give  to  either 
party  the  right  of  trial  by  jury,  or  make  such  other 
change  in  the  mode  of  proceeding  as  it  deems  proper. 

358.  Sixth,  To  controversies  to  which  the  United 
States  shall  be  a  party.  The  United  States  may  sue, 
but  they  cannot  be  sued. 

Seventh,  To  controversies  between  two  or  more 
states. 

Eighth,  To  controversies  between  a  state,  when 
plaintiff,  and  citizens  of  another  state,  or  foreign 
citizens  and  subjects.  As  the  Constitution  originally 
stood,  a  state  might  be  sued  by  a  citizen  of  another 
state.  But  the  states  deemed  this  derogatory  to  their 
dignity,  and  the  Constitution  was  therefore  amended, 
so  that  the  states  may  sue ;  but  cannot  be  sued  by 
individuals,  whether  they  be  citizens  of  another  state, 
or  citizens  or  subjects  of  any  foreign  state. 

Ninth,  To  controversies  between  citizens  of  differ- 
ent states.  Citizenship,  when  spoken  of  in  the 
Constitution,  in  reference  to  the  jurisdiction  of  the 


CONSTITUTION   OF   THE   UNITED   STATES.  205 

courts  of  the  United  States,  means  nothing  more  than 
residence.  But  a  resident  in  one  of  the  territories  or  of 
the  District  of  Columbia,  is  not  entitled  to  sue  or  be  sued 
as  a  citizen  of  a  state.  A  corporation  resides  within  the 
state  creating  it,  and  has  no  legal  existence  outside, 
of  it. 

Tenth,  To  controversies  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states. 

Eleventh,  To  controversies  between  a  state  or  the 
citizens  thereof  and  foreign  states,  citizens,  or  sub- 
jects. A  foreign  state  cannot  be  sued ;  she  can  only 
appear  in  the  federal  courts  as  plaintiff. 

Original  Jurisdiction  of  the  Supreme  Court. 

359.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a 
state  shall  be  a  party,  the  Supreme  Court  has  original 
jurisdiction. 

360.  The  original  jurisdiction  of  the  Supreme 
Court  is  founded  entirely  on  the  character  of  the 
parties :  the  nature  of  the  controversy  is  not  contem- 
plated by  the  Constitution.  And  this  jurisdiction 
Congress  has  no  power  to  extend ;  but  it  is  not  exclu- 
sive, and  it  is  within  the  power  of  Congress  to  vest  it  in 
the  subordinate  federal  courts  also.  The  Act  of  Congress 
organizing  the  Supreme  Court  declares,  for  example, 
that  in  all  suits  or  proceedings  against  ambassadors 
or  other  public  ministers  or  their  domestics,  or  do- 
mestic   servants,   the    jurisdiction   shall   be   exclusive ; 


206  AN   EXPOSITION    OF   THE 

but  not  exclusive  when  the  suit  is  brought  by  an 
ambassador  or  other  public  minister,  or  where  a  con- 
sul or  vice-consul  is  a  party. 

Appellate  Jurisdiction. 

361.  In  all  the  other  cases  before  mentioned  (sec. 
357),  the  Supreme  Court  has  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  Congress  may  make. 

362.  Of  the  eleven  descriptions  of  cases  to  which 
the  judicial  power  extends,  the  Supreme  Court,  it 
will  be  observed,  has  original  jurisdiction  of  but  two, 
namely,  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls ;  and  cases  in  which  a  state 
shall  be  a  party.  The  other  nine  it  can  only  decide 
by  way  of  appellate  jurisdiction ;  that  is,  they  must, 
in  the  first  instance,  be  brought  in  a  lower  court,  and 
the  judgment  of  such  lower  court  may  then  be  re-ex- 
amined and  reversed,  or  affirmed  in  the ,  Supreme 
Court. 

363.  The  rule  established  by  Congress,  under  their 
power  to  make  exceptions  and  regulations  respecting 
the  appellate  jurisdiction  of  the  Supreme  Court,  pro- 
vides that  the  Circuit  Courts  may  re-examine,  reverse, 
or  affirm  the  final  decrees  and  judgments  of  the  Dis- 
trict Courts  in  civil  actions  when  the  matter  in  dispute 
exceeds  fifty  dollars,  exclusive  of  costs ;  and  that  the 
Supreme  Court  may  re-examine,  reverse,  or  affirm 
the  final  judgments  and  decrees  of  the  Circuit  Courts 


CONSTITUTION    OF   THE   UNITED   STATES.  207 

when  the  matter  in  dispute  exceeds,  exclusive  of 
costs,  five  thousand  dollars.  But  while  the  appellate 
power  of  the  Supreme  Court  extends  to  all  cases  within 
the  judicial  power  of  the  United  States,  actual  jurisdic- 
tion under  the  power  is  confined  within  such  limits  as 
Congress  sees  fit  to  prescribe.  Hence  in  admiralty  appeals 
Cougress  may  limit  the  inquiries  of  the  Supreme  Court 
to  questions  of  law  arising  on  the  record,  and  prohibit  the 
re-examination  and  review  of  the  facts. 

Appeals  from  the  State  Courts. 

364.  The  appellate  jurisdiction  of  the  Supreme 
Court  is  not  limited  to  the  inferior  courts  of  the 
United  States.  It  is  the  case,  and  not  the  court,  that 
gives  the  jurisdiction.  It  extends,  therefore,  to  the 
state  courts  as  well  as  to  the  subordinate  courts  of 
the  United  States.  Congress  have  accordingly  pro- 
vided that  a  final  judgment  or  decree,  in  any  suit  in 
the  highest  court  of  law  or  equity  of  a  state,  may  be 
re-examined  and  reversed  or  affirmed  in  the  Supreme 
Court  in  three  descriptions  of  cases : — First,  When 
the  validity  of  a  treaty,  or  statute  of,  or  authority 
exercised  under  the  United  States  is  drawn  in 
question,  and  the  decision  is  against  its  validity. 
Secondly,  When  the  validity  of  a  statute  of,  or  an 
authority  exercised  under  any  state  is  drawn  in  ques- 
tion on  the  ground  of  their  being  repugnant  to  the 
Constitution,  treaties,  or  laws  of  the  United   States, 


208  AN   EXPOSITION   OF  THE 

and  the  decision  is  in  favor  of  their  validity. 
Thirdly,  When  the  construction  of  any  clause  of  the 
Constitution,  or  of  a  treaty,  or  statute  of,  or  commis- 
sion held  under  the  United  States,  is  drawn  in  ques- 
tion and  the  decision  is  against  the  title,  right, 
privilege,  or  exemption  specially  claimed  under  the 
authority  of  the  United  States. 

Territorial  Courts. 

365.  Having  now  reviewed  the  provisions  of  the 
Constitution  which  relate  to  the  judicial  power,  we 
have  only  to  add,  in  concluding  this  branch  of  oar 
subject,  that  the  Courts  established  by  Congress  for 
the  territories  are  not  among  the  courts  in  which  is 
vested  any  part  of  such  judicial  power.  They  are 
legislative  courts,  created  in  virtue  of  the  sovereignty 
which  exists  in  the  government  over  its  territories ; 
and  the  jurisdiction  with  which  they  are  invested  is 
not  a  part  of  the  judicial  power  which  the  Constitu- 
tion contemplates.  Hence  Congress  may  limit  the 
tenure  of  office  of  the  judges,  and  make  such  pro- 
vision with  regard  to  their  salaries  as  they  deem 
proper.  And,  as  the  President  may  remove  all 
officers  appointed  and  commissioned  by  him,  when 
the  Constitution  has  not  otherwise  provided,  he  may 
with  the  advice  and  consent  of  the  Senate,  remove  a 
territorial  judge. 


CONSTITUTION   OF  THE   UNITED   STATES.  209 


TRIALS  AND  IMMUNITIES. 

Trial  by  Jury  in  Criminal  Cases. 

366.  The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  must  be  by  jury  ;  and  such  trial  must 
be  held  in  the  state  where  the  crimes  were  commit- 
ted. But,  when  not  committed  within  any  state,  the 
trial  must  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

367.  A  jury  is  a  body  of  men,  selected  according 
to  a  prescribed  mode,  to  try  questions  of  fact  in  civil 
and  criminal  suits,  and  who  are  under  oath  or  solemn 
affirmation  to  decide  the  facts  truly  and  faithfully, 
according  to  the  evidence  laid  before  them.  Juries  of 
this  kind  are  called  petit  (or  small)  juries  ;  but  there  is 
another  kind  of  jury,  called  a  grand  jury,  whose  duties 
are  of  a  different  character,  as  we  shall  presently  see. 
A  petit  jury  consists  of  twelve  men  ;  a  grand  jury  of 
not  less  than  twelve,  nor  more  than  twenty-three, 
and  twelve  at  least  must  concur  in  every  accusation. 

368.  One  of  the  articles  of  Magna  Oharta  declares 
that  no  man  shall  be  arrested,  nor  imprisoned,  nor 
banished,  nor  deprived  of  life,  &c,  but  by  the  judg- 
ment of  his  peers,  that  is,  the  judgment  of  a  jury, 
or  by  the  law  of  the  land.      This  right  of  trial  by 


210  AN    EXPOSITION   OF  THE 

jury  was  very  dear  to  our  ancestors,  who  brought  it 
with  them  to  America.  It  prevailed  in  all  the 
colonies  anterior  to  the  Revolution,  and  was  secured 
by  a  special  provision  in  all  their  constitutions  when 
they  became  independent  states.  The  Constitution 
of  the  United  States  also  requires  that  the  trial  of 
all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and,  that  the  accused  party  may  not  be 
subjected  to  unnecessary  expense  and  difficulty  in 
procuring  testimony,  the  trial  must  be  held  in  the 
state  where  the  crime  was  committed. 

369.  But  when  crimes  are  committed  upon  the 
high  seas,  or  elsewhere,  out  of  the  limits  of  any 
state,  then  the  trial'  must  be  at  such  place  as  Con- 
gress may  by  law  have  directed.  Congress  accord- 
ingly have  directed  that  the  trial,  in  such  cases,  shall 
take  place  in  the  district  where  the  offender  is  appre- 
hended, or  into  which  he  may  be  first  brought. 

Immunities  secured  to  Accused  Persons. 

370.  In  addition  to  the  original  provision  of  the 
Constitution  respecting  trial  by  jury,  there  are  seve- 
ral amendatory  provisions  which  were  designed  still 
further  to  protect  the  rights  of  individuals,  and  to 
guard  against  injustice  and  wrong.  These  provisions 
are  found  among  the  amendments  to  the  Constitution, 
but  their  consideration  seems  naturally  to  belong  to 
this  place.     The  first  is  as  follows  : — 


CONSTITUTION   OF   THE   UNITED   STATES.  211 

371.  No  person  shall  be  held  to  answer  for  a 
capital,  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service,  in  time  of  war,  or 
public  danger;  nor  shall  any  person  be  subject,  for 
the  same  offence,  to  be  twice  put  in  jeopardy  of  life 
or  limb ;  nor  shall  be  compelled,  in  any  criminal 
case,  to  be  a  witness  against  himself;  nor  be  deprived 
of  life,  liberty,  or  property,  without  due  process  of 
law  ;  nor  shall  private  property  be  taken  for  public 
use  without  just  compensation. 

372.  The  constitutional  privilege  of  trial  by  jury  for 
crimes  does  not  apply  to  prevent  the  courts  from  pun- 
ishing its  officers  for  contempt,  or  from  removing  them 
in  proper  cases.  Removal  from  office  for  an  indictable 
offence  is  no  bar  to  an  indictment.  This  is  in  its  nature 
civil,  and  collateral  to  prosecution  by  indictment. 

Grand  Juries. 

373.  Grand  juries  are  summoned  to  attend  the 
Circuit  and  District  Courts,  whenever  a  judge  of 
either  shall  so  direct.  They  are  not  necessarily 
summoned  at  every  term,  because  their  services  may 
not  be  needed.  Their  duty  is  to  make  inquiry  and 
present  all  offences  within  the  jurisdiction  of  the 
court  they  are  summoned  to  attend.  They  sit  in 
secret  and  examine  the  testimony  against  the  accused 


212  AN    EXPOSITION    OF   THE 

party,  which    is    laid   before   them  by  the    prosecuting 
officer  of  the  government. 

374.  If  they  do  not  think  it  sufficient  to  support 
the  charge  which  is  set  forth  in  the  bill  of  indictment, 
that  is,  in  the  written  accusation,  they  endorse  on 
the  back  of  the  bill  the  words  'not  a  true  bill,'  or 
'not  found,'  or  'ignoramus,'  which  means,  We  know 
nothing  of  it.  The  accused  is  then  entitled,  if  in 
custody,  to  be  discharged.  An  innocent  party  is 
thus  spared  the  pain  and  obloquy  of  being  publicly 
tried  upon  a  criminal  charge. 

375.  On  the  other  hand,  if  the  grand  jury  think 
the  evidence  is  sufficient  to  support  the  indictment, 
they  endorse  on  the  back  of  it,  'a  true  bill.'  It  is 
then  said  to  be  found,  and  is  publicly  taken  into 
court  by  the  jury  ;  the  accused  is  then  held  to  answer, 
and  may  be  put  on  his  trial. 

376.  It  will  be  observed  that  the  intervention  of  a 
grand  jury  is  imperatively  required  only  when  the 
crime  is  capital,  that  is,  punishable  with  death,  or 
otherwise  infamous.  In  crimes  of  an  inferior  grade 
their  services  may  be  dispensed. with,  and  an  accused 
party  be  tried  without  their  first  having  found  a  bill 
of  indictment  against  him.  But,  in  practice,  all 
crimes  of  whatever  grade  are  laid  before  them,  ana 
only  tried  upon  indictments  found  by  them. 

377.  The  requirement  of  a  grand  jury,  we  may  add 


CONSTITUTION   OF   THE   UNITED   STATES.  213 

is  a  limitation  upon  the  powers  of  the  federal  govern- 
ment ;  but  the  states,  if  they  deem  it  wise  and  expedient, 
may  abolish  the  grand  jury,  and  prosecute  all  crimes  by 
information.  There  is  nothing  in  the  Constitution  of 
the  United  States  which  prevents  their  doing  so. 

Courts-martial. 

378.  In  the  government  of  the  army  and  navy,  and 
also  of  the  militia  when  in  actual  service,  in  time  of  war, 
or  public  danger,  offences  are  tried  and  punished  by 
courts-martial,  according  to  the  rules  established  by 
Congress.  A  court-martial  is  composed  of  military  or 
naval  officers,  for  the  trial  of  offences  against  the  laws 
of  the  service  in  the  army  or  navy.  It  is  not  applicable, 
and  can  never  be  applied  to  citizens  in  states  upholding 
the  authority  of  the  government  when  involved  in  for- 
eign or  civil  war.  And  no  law  or  usage  of  war  can  sanc- 
tion a  military  trial  in  such  states  for  any  offence  what- 
ever of  a  citizen  in  civil  life,  in  nowise  connected  writh 
the  military  service.    Congress  could  grant  no  such  power. 

No  Person  to  he  put  twice  in  Jeopardy. 

379.  No  person  shall  be  subject  for  the  same  offence 
to  be  twice  put  in  jeopardy  of  life  and  limb ;  that 
is,  he  shall  not  be  again  tried  for  such  offence,  after 
having  been  once  acquitted  or  convicted.  The  court, 
however,  may  discharge  a  jury  from  giving  a  verdict 
without  the  consent  of  the  prisoner  whenever,  in  their 


214  AN    EXPOSITION    OF   THE 

opinion,  there  is  a  manifest  necessity  for  doing  so,  or 
the  ends  of  public  justice  would  be  otherwise  defeated. 
In  such  case  he  may  be  tried  again,  because  it  is  not 
considered  that  he  has  been  put  in  jeopardy  of  life 
and  limb.  He  may  also  be  tried  again  when,  after  a 
verdict  of  conviction,  the  court  grants  a  new  trial  in 
his  favor.  In  neither  case  is  he  judicially  considered 
to  have  been  put  in  jeopardy. 

Not  to  be  a  Witness  against  himself. 

380.  No  person  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself.  This  is  to  pre- 
vent any  resort  to  those  cruel  and  unjust  means  which 
have  been  employed  in  other  countries  to  extort  a 
confession  of  guilt.  An  accused  party  is  presumed 
to  be  innocent  until  his  guilt  is  made  to  appear  by 
legal  proof.  His  own  voluntary  confession  may  be 
given  in  evidence ;  but  he  cannot  be  compelled  to 
testify  against  himself. 

Not  to  be  deprived  of  Life  unless,  &c. 

381.  No  person  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,  that  is, 
without  legal  warrant  therefor  being  first  obtained  in 
the  regular  course  of  legal  proceedings.  But  due  pro- 
cess of  law  does  not  mean  a  suit  and  a  trial  by  jury, 
in    all   cases    where    property   or    personal    rights   are 


CONSTITUTION   OF   THE   UNITED    STATES.  215 

involved.  A  single  judge  determines  the  question  of 
personal  liberty,  on  a  writ  of  habeas  corpus.  And  the 
courts  of  chancery,  bankruptcy,  probate  and  admiralty, 
administer  the  most  of  their  respective  jurisdictions 
without  trial  by  jury.  Due  process  of  law  is  that 
kind  of  procedure  which  is  suitable  and  proper  to  the 
nature  of  the  case,  and  sanctioned  by  the  established 
customs  and  usages  of  the  courts. 

382.  Lord  Hale  laid  it  down  as  an  element  in  the  law 
of  property,  that  when  it  is  "affected  with  a  public  inter- 
est, it  ceases  to  be  juris  privati  only."  That  principle 
has  been  deemed  a  part  of  the  law  of  England  and  of 
this  country  ever  since.  And  property  becomes  clothed 
with  a  public  interest  when  used  in  a  manner  to  make  it 
of  public  consequence,  and  when  its  use  affects  the  com- 
munity at  large.  And  the  public  may  control  such  use 
for  the  common  good.  Hence  statutes  regulating  ferries, 
warehouses,  mills,  bridges,  turnpike  roads,  common  car- 
riers, hackmen,  bakers,  wharfingers,  innkeejlfcrs,  &c,  and 
fixing  a  maximum  of  charge  for  services  rendered,  ac- 
commodations furnished,  and  articles  sold,  do  not  neces- 
sarily deprive  an  owner  of  his  property  without  due  pro- 
cess of  law.  The  power  to  govern  men  and  things  is 
inherent  in  every  sovereignty,  and  the  states  of  the  Fed- 
eral Union  are  as  sovereign  as  the  Parliament  of  England, 
except  so  far  as  they  have  delegated  powers  to  the  United 
States,  and  except  so  far  as  powers  have  been  reserved 
by  the  people. 


216  AN   EXPOSITION   OF   THE 


Private  Property  not  to  be  taken  for  Public  Use 
unless,  (fee. 

383.  Private  property  cannot  be  taken  for  public 
use  without  just  compensation.  A  similar  provision 
is  to  be  found  in  the  constitutions  of  the  several 
s-tates,  so  that  neither  the  government  of  the  United 
States  nor  that  of  the  individual  states  can  arbitrarily 
take  private  property.  It  must  be  taken  only  for 
the  public  use,  and  just  compensation  must  be  made 
for  it.  But  acts  done  in  the  proper  exercise  of  govern- 
mental powers,  and  not  directly  encroaching  upon  private 
property,  though  their  consequences  may  impair  its  use, 
are  held  not  to  be  a  taking  within  the  meaning  of  this 
provision  of  the  Constitution.  They  do  not  entitle  the 
owner  of  such  property  to  compensation  from  the  state  or 
its  agents,  nor  give  him  any  right  of  action.  Hence  a 
municipal  corporation,  authorized  by  law  to  improve  a 
street,  incurs  no  liability  for  the  damages  unavoidably 
caused  to  adjoining  property,  by  such  improvement. 


Rights  of  Defendants  in  Criminal  Cases. 
384.    Another   of  the   amendatory   articles   declares 
that,   in   all   criminal   prosecutions,   the   accused   shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an 


CONSTITUTION   OF   THE   UNITED   STATES.  217 

impartial  jury  of  the  state  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  be 
informed  of  the  nature  and  cause  of  the  accusation  ; 
be  confronted  with  the  witnesses  against. him;  have 
compulsory  process  for  obtaining  witnesses  in  his 
favor ;  and  have  the  assistance  of  counsel  for  his  de- 
fence. 

385.  We  have  seen  in  a  previous  section  (sec.  366) 
that  the  trial  of  all  crimes  must  be  by  jury,  and  also 
be  held  in  the  state  where  they  were  committed  ;  but 
this  amendment  of  the  Constitution  was  intended  still 
further  to  insure  justice  to  a  person  accused  of  a 
criminal  offence.  It  secures  to  him  a  speedy  and 
public  trial  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  was  committed,  which  district 
must  have  been  previously  ascertained  by  law. 

386.  He  is  to  be  informed  of  the  nature  and  cause- 
of  his  accusation.  This  is  done  in  the  indictment,, 
which  carefully  sets  forth  both  ;  and  Congress  have- 
provided  that  in  cases  of  treason  the  accused  shall; 
have  a  copy  of  the  indictment  delivered  to  him  three- 
entire  days  at  least  before  the  trial,  and  in  other 
capital  cases  at  least  two  entire  days  before  the  trial* 

387.  He  is  to  be  confronted  with  the  witnesses 
against  him,  that  is,  they  must  give  in  their  testimony 
in  his  presence.     He  is  also  to  have  compulsory  pro- 

19 


218  AN    EXPOSITION    OF   THE 

cess  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  assistance  of  counsel  for  his  defence. 


Excessive  Bail  not  to  he  required. 

388.  One  of  the  amendments  to  the  Constitution 
declares  that  excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  and  unusual 
punishments  inflicted. 

389.  Bail  is  the  security  given  for  the  release  of  a 
prisoner,  and  his  appearance  in  court  at  a  designated 
time  to  meet  his  trial.  By  Act  of  Congress  bail  must 
be  admitted  upon  all  arrests  in  criminal  cases,  except 
where  the  punishment  may  be  death,  in  which  case 
it  shall  not  be  admitted  but  by  the  Supreme  or  a  Cir- 
cuit Court,  or  by  a  justice  of  the  Supreme  Court,  or 
a  judge  of  a  District  Court,  who  must  exercise  their 
discretion  whether  to  admit  it  or  not,  upon  a  con- 
sideration of  the  nature  and  circumstances  of  the 
offence,  and  of  the  evidence  and  usages  of  law.  It 
would  be  vain,  however,  to  provide  for  the  discharge 
of  persons  in  custody  upon  their  giving  bail,  if  such 
provision  could  be  defeated  by  the  courts  requiring 
excessive  bail.  They  might  not  be  disposed  to  re- 
quire it ;  but  the  Constitution  has  very  properly  put  it 
out  of  their  power  to  exercise  any  discretion  in  the 
matter.  This  article  of  the  Constitution  is  applicable  to 
federal  and  not  to  state  authority. 


CONSTITUTION    OF   THE    UNITED   STATES.  219 


Trial  hy  Jury  in  Civil  Cases. 

390.  We  have  now  seen  that  the  Constitution  pro- 
vides that  the  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury ;  and  we  have  con- 
sidered the  various  securities  that  have  been  devised 
to  prevent  wrong  and  injustice  in  criminal  prosecu- 
tions. But  it  was  made  a  great  objection  to  the  Con- 
stitution that  there  was  no  express  provision  for  a 
trial  by  jury  in  civil  cases.  Besides,  it  was  said  that 
as  the  Supreme  Court  had  appellate  jurisdiction  both 
as  to  law  and  fact,  they  would  have  the  power  prac- 
tically to  review  and  overturn  the  verdicts  of  juries, 
and  thus  destroy  the  benefits  of  that  mode  of  trial. 

391.  To  meet  these  objections  the  Constitution 
was  amended,  and  it  was  expressly  provided  that  in 
suits  at  common  law,  when  the  value  in  controversy 
should  exceed  twenty  dollars,  the  right  of  trial  by 
jury  should  be  preserved;  and  no  fact,  tried  by  a 
jury,  should  be  otherwise  re-examined  in  any  court 
of  the  United  States  than  according  to  the  rules  of 
the  common  law. 

392.  The  common  law  here  meant  is  the  common 
law  of  England.  This  law  has  been  incorporated,  so 
far  as  it  is  applicable  to  their  situation,  into  the 
jurisprudence  of  all  the  states,  except  the  state  of 


220  AN    EXPOSITION   OF   THE 

Louisiana,  where  the  civil  law  prevails.  And  by  suits 
at  common  law  is  meant  all  suits,  not  of  equity  or 
admiralty  jurisdiction,  in  which  legal  rights  are 
determined  according  to  the  principles  of  the  common 
law,  no  matter  what  may  be  the  peculiar  form  of  the 
suit.  And  in  all  suits  of  this  character,  where  the 
value  in  controversy  exceeds  twenty  dollars,  the  trial 
must  be  by  jury,  unless  the  parties  to  the  suit  waive 
the  benefit  of  such  trial. 

393.  Trial  by  jury  is  the  accustomed  mode  of  trial 
in  the  several  states,  but  this  provision  of  the  Constitu- 
tion relates  only  to  trials  in  the  courts  of  the  United 
States.  The  states,  notwithstanding  it,  may  regulate 
trials  in  their  own  courts  in  their  own  way.  A  state  can- 
not  deprive  a  person  of  his  property  without  due  process 
of  law,  but  this  does  not  imply  that  trials  in  the  state 
courts  affecting  the  property  of  persons  must  be  by  jury. 
A  trial  according  to  the  settled  course  of  judicial  pro- 
ceedings, is  all  that  is  necessarily  required.  But  in  suits 
at  common  law,  in  the  United  States  Courts,  when  the 
value  in  controversy  exceeds  twenty  dollars,  the  trial 
must  be  by  jury. 

394.  According  to  the  common  law,  facts  once 
tried  by  a  jury  are  never  re-examined,  unless  a  new 
trial  be  granted  by  the  court  before  which  the  suit 
is  depending ;  or  unless  the  judgment  of  such  court 
be  reversed,  by  a  superior  tribunal,  for  some  error 
of  law  in  its  proceedings,  and  a  new  trial  be  granted 
in  consequence.  It  is  therefore  only  in  these  two 
modes  that  a  fact,  once  tried  by  a  jury,  can  again  be 


CONSTITUTION   OF   THE    UNITED   STATES.  221 

re-examined  in  any  court  of  the  United  States.  This 
amendment  of  the  Constitution  being  a  limitation  upon 
the  powers  of  the  federal  government,  and  not  upon  the 
states,  it  follows  that  it  does  not  prohibit  a  state  court 
from  re-examining,  on  a  writ  of  error,  facts  tried  by  a 
jury  in  the  court  below.  But  it  does  so  prohibit  the 
federal  courts,  and  the  prohibition  applies  as  well  to  writs 
of  error  to  state  courts,  involving  Federal  questions,  as 
to  writs  of  error  to  the  inferior  federal  courts. 


19* 


222  AN    EXPOSITION    OF   THE 


TREASON. 

In  what  it  Consists. 

395.  To  prevent  subordinate  acts  from  being  con- 
strued  as  treason,  which,  in  former  times,  was  fre- 
quently done  in  England,  the  Constitution  declares 
that  treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort. 

396.  Levying  war  is  the  assembling  of  a  body  of 
men,  in  a  condition  to  make  war,  for  the  purpose  of 
overthrowing  the  government,  or  resisting  its  powers. 
A  conspiracy  or  agreement  to  levy  war  does  not 
amount  to  treason.  There  must  be  an  actual  assem- 
bling of  men,  with  the  intention  and  capacity  to  levy 
war,  to  constitute  a  levying  of  war,  or,  in  other 
words,  treason.  But  if  war  be  actually  levied,  all 
those  who  perform  any  part,  however  minute,  or 
however  remote  from  the  scene  of  action,  and  who 
are  really  leagued  in  the  general  attempt,  are  to  be 
considered  traitors. 

397.  Treason  against  the  United  States  may  also 
consist  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  Delivering  up  prisoners  and  deserters 
to  the  enemy  is  treason  within  this  clause.      And  so 


»<  TT  W  T  TTT?  SkX?  T 


CONSTITUTION   OF   THE   UNITED   STATES. 

it  has  been  held  is  the  carrying  of  provisions  towards 
the  enemy  with  intent  to  supply  him,  though  that 
intention  should  be  defeated. 

How  many  Witnesses  necessary  in  cases  of 
Treason. 

398.  No  person  shall  be  convicted  of  treason  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. 

Punishment  of  Treason. 

399.  Congress  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted. 

400.  The  common  law  prescribes  the  following 
mode  of  punishment  fur  the  crime  of  treason  :  1.  That 
the  offender  be  drawn  to  the  gallows,  and  not  be 
carried  or  walk,  though  usually  (by  connivance,  at 
length  ripened  into  law)  a  sledge  or  hurdle  is  allowed, 
to  preserve  the  offender  from  the  extreme  torment  of 
being  dragged  on  the  ground  or  pavement.  2.  That 
he  be  hanged  by  the  neck,  and  cut  down  alive.  3. 
That  his  entrails  be  taken  out  and  burned  while  he 
is  yet  alive.  4.  That  his  head  be  cut  off.  5.  That 
his  body  be  divided  into  four  parts.  6.  That  his 
head  and  quarters  be  at  the  king's  disposal. 


224  AN   EXPOSITION   OF   THE 

401.  Such  a  barbarous  and  cruel  mode  of  punish- 
ment could  only  have  been  devised  in  an  uncivilized 
and  ferocious  age.  It  is  a  source  of  just  pride  and 
congratulation,  that  a  spirit  of  mildness  and  humanity 
characterizes  all  the  provisions  of  the  Constitution 
of  the  United  States  that  relate  to  crimes  and  punish- 
ments. In  a  previous  section  we  have  seen  that  it  is 
expressly  provided  that  excessive  fines  shall  not  be 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 
So  that,  although  Congress  may  declare  the  punish- 
ment of  treason,  such  punishment  must  not  be  cruel 
or  unusual.  The  punishment  actually  declared  by 
Congress  is  death  by  hanging. 

402.  Another  restraint  upon  the  power  of  Con- 
gress to  declare  the  punishment  of  treason  is,  that  no 
attainder  of  treason  shall  work  corruption  of  blood  or 
forfeiture,  except  during  the  life  of  the  person  at- 
tainted. 

403.  By  attainder  of  treason  is  meant  that  stain 
or  corruption  of  blood  which,  by  the  common  law, 
follows  upon  conviction  of  treason.  A  person  thus 
attainted  forfeits  all  his  lands,  and  tenements,  and 
goods,  and  can  neither  inherit  an  estate  from  his 
ancestors,  nor  transmit  one  to  his  posterity.  To 
prevent  this  unjust  punishment  of  the  innocent 
descendants  of  a  man  convicted  of  treason,  the  Con- 
stitution provides   that  no  attainder  of  treason  shall 


CONSTITUTION   OF    THE    UNITED    STATES.  225 

work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted.  And  Congress  by 
law  have  declared  that  no  conviction  or  judgment,  for 
any  capital  or  other  oifences,  shall  work  corruption 
of  blood  or  any  forfeiture,  of  estate. 


226  AN    EXPOSITION   OF   THE 


INTERSTATE  PRIVILEGES  AND  REGULATIONS. 

State  Records,  etc. 

404.  Full  faith  and  credit  must  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  state.  And  Congress  may, 
by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and 
the  effect  thereof. 

405.  Before  full  faith  and  credit  can  be  given  to 
the  public  acts,  records,  and  judicial  proceedings  of 
another  state,  it  must  first  be  shown  that  they  are 
authentic ;  in  other  words,  it  must  be  shown  that 
they  are  in  fact  such  public  acts,  records,  and  judicial 
proceedings.  The  judgment  of  a  state  court,  for 
example,  when  duly  authenticated,  must  have  full 
faith  and  credit  given  to  it  in  every  other  court 
within  the  United  States ;  but  there  must  first  be  the 
authentication,  or  such  effect  does  not  follow. 

406.  It  is  left  to  Congress  to  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  of  such  proof.  Congress  have 
accordingly  provided  that  the  acts  of  the  legislatures 


CONSTITUTION   OF   THE    UNITED   STATES.  227 

of  the  several  states  shall  be  authenticated  by  having 
the  seal  of  their  respective  states  affixed  thereto  ;  and 
the  records  and  judicial  proceedings  of  their  courts 
shall  be  proved  or  admitted  in  any  other  court  within 
the  United  States  by  the  attestation  of  the  clerk  and 
the  seal  of  the  court  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  judge,  chief  justice, 
or  presiding  magistrate,  as  the  case  may  be,  that  the 
attestation  is  in  due  form. 

407.  Records  and  judicial  proceedings,  when  thus 
authenticated,  are  to  have  such  faith  and  credit 
given  to  them  in  every  court  within  the  United  States 
as  they  have  by  law  or  usage  in  the  courts  of  the  state 
from  whence  they  are  taken. 

408.  Hence  the  judgment  of  a  state  court  has  the 
same  credit,  validity,  and  effect  in  every  other  court 
within  the  United  States  which  it  had  in  the  state 
where  it  was  rendered.  The  merits  of  the. judgment 
cannot  be  re-examined.  It  may  be  shown,  however, 
that  it  was  obtained  by  fraud,  or  that  the  court 
rendering  it  had  no  jurisdiction,  in  which  cases  it  is 
entitled  to  no  faith  or  credit.  Nor  would  it  be 
entitled  to  any  faith  or  credit  in  or  out  of  the  state  in 
which  it  was  rendered,  if  recovered,  against  a  non-resi- 
dent party  without  service  of  process  upon  him.  If 
without  personal  service  within  the  state,  judgments  in 
personam,  obtained  ex  parte  against  non-residents,  upon 
mere  publication  of  process,  could  be  upheld  and  en- 
forced, they  would  be  the  constant  instruments  of  fraud 
and  oppression. 


228  AN   EXPOSITION    OF    THE 


Privileges  of  Citizens. 

409.  The  citizens  of  each  state  are  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
states. 

410.  The  privileges  and  immunities  which  are  here 
secured  to  the  citizens  of  each  state  in  all  the  other 
states  may  be  summed  up  as  follows : — The  right  of 
a  citizen  of  one  state  to  pass  through,  or  to  reside  in 
any  other  state,  for  purposes  of  trade,  agriculture, 
professional  pursuits,  or  otherwise ;  to  claim  the 
benefit  of  the  writ  of  habeas  corpus;  to  institute 
and  maintain  actions  of  any  kind  in  the  courts  of 
the  state ;  to  take,  hold,  and  dispose  of  property  of 
every  kind;  to  be  exempted  from  higher  taxes  or 
impositions  than  are  paid  by  the  other  ^citizens  of  the 
state ;  and  to  exercise  the  elective  franchise  as  regu- 
lated and  established  by  the  laws  or  constitution  of 
the  state.  In  a  word,  the  citizens  of  one  state  going 
into  another  are  entitled  to  protection  by  the  govern- 
ment of  such  state ;  to  the  enjoyment  of  life  and 
liberty,  and  the  pursuit  of  happiness,  subject,  how- 
ever, to  such  restraints  as  the  laws  and  Constitution 
may  have  prescribed  for  the  general  good  of  the 
whole. 

411.  But  a  citizen  of  one  state  cannot  claim  any 
rights  which  under  the  laws  of  another  state  belong 


CONSTITUTION   OF   THE   UNITED   STATES.  229 

only  to  residents  of  the  state.  To  enjoy  such  rights 
he  must  become  domiciled  there.  He  is,  however,  en- 
titled to  protection  against  any  discriminating  legis- 
lation which  would  place  him  in  a  worse  situation 
than  belongs  to  the  proper  citizen  of  the  particular 
state.  Hence  a  state  license  tax,  which  discriminates 
against  commodities  of  other  states  is  void,  as  abridging 
the  privileges  and  immunities  of  the  citizens  of  such  other 
states.  We  may  add,  that  the  privileges  and  immunities 
referred  to  in  the  foregoing  clause  are  those  which  belong 
to  the  citizens  of  the  states  as  such,  and  are  left  to  the 
state  governments  for  security  and  protection,  and  are 
beyond  the  scope  of  the  legislative  and  constitutional 
power  of  the  government  of  the  United  States. 

412.  Corporations  are  not  within  the  meaning  of  this 
clause  of  the  Constitution,  and  hence  a  state  may  exclude 
a  corporation  of  another  state  from  its  jurisdiction.  But 
it  would  be  otherwise,  if  the  corporation  were  engaged 
in  inter-state  commerce.  Because,  then,  it  would  be 
under  the  regulating  power  of  Congress,  and  not  of  the 
states. 

Fugitives  from  Justice. 

413.  A  person  charged  in  any  state  with  treason, 
felony,  or  other  crime,  who  shall  flee  from  justice,  and 
be  found  in  another  state,  shall,  on  demand  of  the  execu- 
tive authority  of  the  state  from  which  he  fled,  be  deli- 
vered up  to  be  removed  to  the  state  having  jurisdiction 
of  the  crime. 

414.  It    is    a   question    upon   which    jurists    differ, 


230  AN   EXPOSITION   OF  THE 

whether  it  is  the  duty  of  a  nation,  in  the  absence  of 
a  positive  engagement,  to  surrender  fugitives  from 
justice  who  have  sought  shelter  within  its  limits.  It 
might,  perhaps,  be  clearly  implied  that,  in  such  a 
union  of  states  as  ours,  every  state  is  bound  to  deny 
an  asylum  to  the  criminals  of  the  other  states.  But 
the  Constitution  has  not  left  so  important  a  question 
to  inference  or  implication  ;  it  has  enjoined  it  as  a 
mutual  obligation  upon  the  states  to  deliver  up,  on 
demand,  fugitives  from  justice.  And  Congress  by 
law  have  prescribed  the  mode  of  proceeding  when  a 
fugitive  from  justice  is  demanded. 

415.  The  words  "treason,  felony,  or  other  crime  " 
include  every  offence  forbidden  and  made  punishable 
by  the  laws  of  the  state  where  the  offence  is  commit- 
ted. And  it  must  appear  from  the  papers  that  the 
alleged  fugitive  committed  the  crime  with  which  he  is 
charged  in  the  state  from  which  the  requisition  pro- 
ceeds. The  obligation  to  surrender  fugitives  from 
justice  rests  upon  the  mutual  good  will  and  good  faith 
of  the  states;  and,  hence,  if  the  governor  of  a  state 
should  refuse  on  proper  demand  to  deliver  up  such 
fugitive,  the  Federal  courts  have  no  power  to  compel 
him  to  perform  the  duty. 

Fugitives  from  Labor. 

416.  No  person  held   to   service  or  labor  in  one 
state,  under  the  laws  thereof,  escaping  into  another, 


CONSTITUTION   OF   THE   UNITED   STATES.  231 

shall,  in  consequence  of  any  law  or  regulation  therein, 
be  discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  may  be  due. 

417.  Before  the  adoption  of  the  Constitution,  a 
slave  escaping  from  one  state  into  another  could  only 
be  recovered  as  a  matter  of  comity  and  favor,  not  as 
a  matter  of  right.  Because,  by  the  law  of  nations, 
no  independent  state  is  bound  to  recognise  the  state 
of  slavery  as  to  foreign  slaves  found  within  its  terri- 
tory, when  such  recognition  is  in  opposition  to  its  own 
policy  and  institutions. 

418.  Hence  the  constitutional  provision  which 
makes  that  a  matter  of  legal  right  which  before 
could  be  claimed  only  as  a  matter  of  favor.  Under 
the  Constitution,  therefore,  a  fugitive  from  service  or 
labor  cannot,  in  consequence  of  any  law  or  regula- 
tion of  the  state  into  which  he  may  have  fled,  be 
discharged  from  such  service  or  labor,  but  must  be 
delivered  up  on  claim  of  the  party  entitled  to  his 
service  or  labor. 

419.  There  must,  however,  be  an  escape.  The 
Constitution  does  not  extend  to  the  case  of  a  slave 
voluntarily  carried  by  his  master  into  a  state  in 
which  slavery  is  not  tolerated,  or  who  goes  there 
with  his  master's  permission,  and  then  escapes  or 
refuses  to  return.     Whether  such  a  person  shall  be 


232  AN    EXPOSITION    OF   THE 

delivered  up,  or  be  deemed  free,  depends  wholly  upon 
the  local  law  and  regulations,  and  not  at  all  upon  the 
Constitution  or  laws  of  the  United  States.  Happily 
all  questions  growing  out  of  the  state  of  slavery  are 
now  at  an  end  by  its  entire  abolition. 


CONSTITUTION   OF   THE    UNITED   STATES.  233 


NEW  STATES  AND  TERRITORIES. 

Admission  of  New  States  into  the  Union. 

420.  New  states  may  be  admitted  by  Congress  into 
the  Union  ;  but  no  new  state  can  be  formed  or  erected 
within  the  jurisdiction  of  any  other  state  ;  nor  any 
state  be  formed  by  the  junction  of  two  or  more  states 
or  parts  of  states,  without  the  consent  of  the  legisla- 
tures of  the  states  concerned,  as  well  as  of  the  Con- 
gress. 

421.  At  the  time  of  the  adoption  of  the  Constitu- 
tion, the  United  States  possessed  a  vast  extent  of 
vacant  territory  which  had  been  acquired,  along  with 
our  independence,  from  England.  We  have  since  ob- 
tained immense  acquisitions  of  territory  from  France, 
Spain,  Mexico,  and  Russia;  from  France — the  terri- 
tory known  as  Louisiana;  from  Spain — Florida;  and 
from  Mexico  —  California,  New  Mexico,  Utah,  and  ex 
tensive  districts  of  country  lying  along  the  southern 
boundary  of  the  United  States;  and  from  Russia — ■ 
Alaska. 

422.    Out    of   these  various   acquisitions    twenty-five 
20* 


234  AN    EXPOSITION   OF   THE 

new  states  have  already  been  admitted  into  the  Union, 
originally  composed  of  thirteen  states  ;  and  territory 
yet  remains  sufficient  when  peopled  to  form  perhaps 
fifteen  or  twenty  more. 

423.  The  usual  mode  of  proceeding  in  the  creation 
and  admission  of  new  states  is  as  follows  :  When  a 
territory  has  acquired  such  a  population  as  fits  it  to 
become  a  state,  the  territorial  legislature,  with  the 
permission  of  Congress,  pass  a  law  authorizing  a  con- 
vention to  be  chosen  for  the  purpose  of  forming  a 
constitution  and  state  government.  The  constitution 
when  formed  is  submitted  to  Congress  by  the  conven- 
tion, with  the  request  that  the  territory  may  be 
admitted  into  the  Union  as  a  state.  If  the  constitu- 
tion is  found  to  be  republican,  and  is  approved,  Con- 
gress admit  it  on  an  equal  footing  with  the  original 
states. 

424.  To  prevent  Congress  from  arbitrarily  creating 
new  states  by  the  division  of  the  larger  states,  or  the 
junction  of  the  smaller  ones,  or  of  parts  of  states,  it 
is  provided  that  such  division  or  junction  shall  not 
take  place  without  the  consent  of  the  legislatures  of 
the  states  concerned. 

Territories. 

425.  Congress  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  terri- 


CONSTITUTION   OF   THE   UNITED   STATES.  235 

tory  or  other  property  belonging  to  the  United  States ; 
and  nothing  in  the  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States,  or 
of  any  particular  state. 

426.  The  term  "territory,"  as  here  used,  is  merely 
descriptive  of  one  kind  of  property,  and  is  equivalent 
to  the  word  lands.  The  power  of  Congress  to  "  dis- 
pose of"  the  public  lands  is  not  limited  to  making 
sales :  they  may  be  leased.  But  no  property  belong- 
ing to  the  United  States  can  be  disposed  of,  except 
by  the  authority  of  Congress. 

427.  It  is  observable  that  the  right  to  acquire 
territory  is  nowhere  expressly  granted  in  the  Consti- 
tution:  but  the  power  to  make  war  and  treaties  is 
granted,  and  from  this  results  the  power  to  acquire 
territory  in  either  of  those  modes,  that  is,  by  war  or 
treaty.  And  the  right  to  govern  would  seem  to  be 
the  inevitable  consequence  of  the  right  to  acquire 
territory. 

428.  Congress  may  govern  the  territories  in  such  mode, 
within  the  scope  of  its  constitutional  powers,  as  it  thinks 
proper,  either  directly,  by  its  own  legislation,  or  by  means 
of  territorial  governments — the  latter  being  the  usual 
mode.  But  Congress  may  not  only  abrogate  laws  of  the 
territorial  legislatures ;  it  may  itself  legislate  directly  for 
the  local  government.  It  may  make  a  void  act  of  the 
territorial  legislature  valid,  and  a  valid  act  void.     That 


236  AN    EXPOSITION    OF    THE 

is,  it  has  full  and  complete  legislative  authority  over  the 
people  of  the  territories  and  the  territorial  governments. 
And  all  measures  commenced  and  prosecuted  with  a 
design  to  subvert  the  territorial  government,  and  to  es- 
tablish and  put  in  force  in  its  place  a  new  government, 
without  the  consent  of  Congress  are  unlawful. 

429.  But  the  people  of  any  territory  may  peace- 
ably meet  together  in  primary  assemblies,  or  in 
conventions  chosen  by  such  assemblies,  for  the  pur- 
pose of  petitioning  Congress  to  abrogate  the  territo- 
rial government,  and  to  admit  them  into  the  Union 
as  an  independent  state,  and  if  they  accompany  their 
petition  with  a  constitution,  framed  and  agreed  to  by 
their  primary  assemblies,  or  by  a  convention  of 
delegates  duly  authorized,  there  is  no  objection  to 
their  power  to  do  so,  nor  to  any  measures  which  may 
be  taken  to  collect  the  sense  of  the  people  in  respect 
to  it :  provided  such  measures  be  prosecuted  in  a 
peaceable  manner,  in  subordination  to  the  existing 
government,  and  in  subserviency  to  the  power  of 
Congress  to  adopt,  reject,  or  disregard  them,  at  their 
pleasure. 


CONSTITUTION    OF   THE    UNITED    STATES.  237 


GUARANTY  OF  REPUBLICAN  GOVERNMENT. 

Injunction  respecting. 

430.  The  United  States  shall  guarantee  to  every 
state  in  the  Union  a  republican  form  of  government, 
and  shall  protect  each  of  them  against  invasion,  and 
on  application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  be  convened),  against 
domestic  violence. 

431.  A  confederacy  of  states,  founded  on  dissimi- 
lar principles,  some  of  the  states  having  a  republican 
form  of  government,  some  an  aristocratic  form,  and 
others  a  monarchical  form,  would  be  very  apt,  from 
opposing  views  and  policy,  to  be  discordant,  and  fail 
into  distraction.  To  avoid  such  a  condition  of  affairs, 
the  Constitution  has  provided  that  in  all  the  states 
of  the  Union  a  republican  form  of  government  must 
be  maintained. 

432.  It  has  been  justly  remarked  that  the  only 
restriction  imposed  on  the  states  by  this  clause  of 
the  Constitution  is,  that  they  shall  not  exchange 
republican  for  anti-republican  institutions.  They 
may  alter  or  amend  their  respective  constitutions  as 
they  please,  only  they  must  take  care  and  preserve 


238  AN    EXPOSITION   OF   THE 

the  republican  form.  If  they  should  adopt  aristo- 
cratic or  monarchical  systems,  or  such  systems  should 
be  imposed  on  them  by  the  violence  of  parties  or 
factions,  the  government  of  the  United  States  would 
be  bound  to  interpose  and  restore  the  republican 
form. 

433.  And  the  standard  by  which  the  question  must 
be  determined  whether  the  actual  government  is  re- 
publican in  form  or  not,  is,  does  it  correspond  with 
the  governments  in  existence  when  the  Constitution 
was  adopted  ?  When  a  state  is  admitted  into  the 
Union,  Congress  determines,  by  the  fact  of  admission, 
that  the  government  of  such  state  is  republican  in 
form.  If  changes  are  afterwards  made  which  do  not 
essentially  alter  the  character  of  such  government,  as 
it  stood  when  the  state  was  admitted  into  the  Union, 
Congress  cannot  interpose,  however  distasteful  such 
changes  may  be.  But,  it  seems,  by  recent  decisions 
of  the  Supreme  Court  of  the  United  States,  that  if 
Congress  should  unjustly,  erroneously,  and  arbitrarily 
determine  and  declare  that  a  particular  state  govern- 
ment was  not  republican  in  form,  and  refuse  thereupon 
to  recognize  it,  the  citizens  of  such  state  are  without 
redress.  The  judicial  tribunals,  in  political  questions, 
accept  and  follow  the  conclusions  of  the  political 
department. 

434.  The  United  States  are  also  bound  to  protect 
each  state  from  invasion  ;  and  also  against  domestic 


CONSTITUTION    OF   THE   UNITED   STATES.  239 

violence,  such  as  insurrection  or  rebellion,  on  appli- 
cation of  the  legislature,  or  of  the  executive  when 
the  legislature  cannot  be  convened. 


240  AN    EXPOSITION    OF   THE 


AMENDMENTS. 

Mode  of. 

435.  Congress,  whenever  two-thirds  of  both  Houses 
deem  it  necessary,  must  propose  amendments  to  the 
Constitution,  or,  on  the  application  of  the  legislatures 
of  two-thirds  of  the  several  states,  must  call  a  con- 
vention for  proposing  amendments,  which,  in  either 
case,  are  valid  to  all  intents  and  purposes,  as  part 
of  the  constitution,  when  ratified  by  the  legislatures 
of  three-fourths  of  the  several  states,  or  by  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  Congress ; 
provided,  that  no  amendment,  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and 
eight,  shall,  in  any  manner,  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  Article ;  and 
that  no  state,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate. 

436.  As  useful  alterations  in  the  Constitution 
might  be  suggested  by  experience,  a  mode  is  pro- 
vided for  making  them.  This  mode  combines  two 
great  advantages;  that  is,  changes  can  be  made,  but 
without  too  much  facility  on  the   one  hand,  or  too 


CONSTITUTION   OF    THE    UNITED    STATES.  241 

much  difficulty  on  the  other.  If  changes  are  too 
easily  made,  there  will  be  instability  in  the  govern- 
ment ;  if  with  too  great  difficulty,  the  community  may 
be  deprived  of  the  benefit  of  salutary  reforms,  or 
seek  a  remedy  in  revolution  or  civil  dissension. 

437.  No  amendments,  it  will  be  observed,  can  be 
made  to  the  Constitution  unless  two-thirds  of  Con- 
gress propose  them,  or  they  are  proposed  by  a  con- 
vention called  by  Congress,  on  the  application  of 
two-thirds  of  the  legislatures  of  the  several  states  , 
and  also,  unless  three-fourths  of  the  states,  either  by 
their  legislatures  or  by  conventions  called  for  that 
purpose,  ratify  them. 

438.  No  amendment,  made  prior  to  the  year  1808, 
could  affect,  in  any  manner,  those  clauses  which 
relate  to  the  migration  or  importation  of  such  per- 
sons as  the  states  might  think  proper  to  admit,  and 
to  the  manner  in  which  direct  taxes  should  be  laid  : 
in  other  words,  no  changes  could  be  made  in  those 
clauses  which  relate  to  the  importation  of  slaves,  or 
the  apportionment  of  taxes,  until  after  the  year 
1808.  A  permanent  limitation  upon  the  power  of 
amendment  is,  that  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 
It  should  be  observed  that  a  proposed  amendment  to 
the  Constitution  need  not  be  presented  to  the  Presi- 
dent for  his  approval. 

21  Q 


242  AN    EXPOSITION   OF   THE 


PUBLIC   DEBT,  SUPREMACY  OF   THE  CONSTITU- 
TION, &c. 

Public  Debt. 

439.  All  debts  contracted  and  engagements  en- 
tered into  before  the  adoption  of  the  Constitution,  are 
as  valid  against  the  United  States,  under  the  Consti- 
tution, as  under  the  Confederation. 

440.  When  a  nation  changes  one  form  of  govern- 
ment for  another,  the  government  under  the  new 
form  becomes  liable  for  all  the  obligations  of  the  pre- 
ceding government.  Hence  the  government  of  the 
United  States  under  the  Constitution  necessarily 
became  liable  for  the  debts  and  engagements  entered 
into  by  the  government  of  the  United  States  under 
the  Confederation.  The  object  of  expressly  asserting 
this  principle  of  the  law  of  nations  in  the  Constitu- 
tion itself  was,  doubtless,  to  allay  any  apprehensions 
that  the  public  creditors  might  be  supposed  to  feel. 

Supremacy  of  the  Constitution. 

441.  The  Constitution  and  the  laws  of  the  United 
States  made  in  pursuance  of  it,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the 


CONSTITUTION   OF   THE    UNITED   STATES.  243 

United  States,  are  the  supreme  law  of  the  land  ;  and 
the  judges  in  every  state  are  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding. 

442.  The  propriety  and  the  necessity  of  making 
the  Constitution,  and  the  laws  passed  in  pursuance 
of  it,  the  supreme  law  of  the  land,  are  very  obvious. 
The  very  existence  of  the  federal  government  depends 
upon  it.  If  the  powers  conferred  on  that  govern- 
ment could  be  overridden  by  contradictory  powers  in 
the  several  state  governments,  they  might  as  well 
not  have  been  conferred  at  all.  Necessarily,  there- 
fore, powers  conferred  for  national  purposes  must  be 
supreme  over  those  conferred  for  state  purposes. 
But  those  powers  cannot  be  exceeded.  If  Congress 
pass  laws  not  in  pursuance  of  the  Constitution,  they 
are  void,  and  it  is  the  duty  of  the  judiciary  to  declare 
them  void.  And  it  is  equally  their  duty  to  declare 
void  acts  of  the  state  legislatures  which  are  repug- 
nant to  the  Constitution  of  the  United  States. 

443.  A  treaty  ratified  with  proper  formalities  is, 
by  the  Constitution,  the  supreme  law  of  the  land,  and 
the  courts  have  no  power  to  examine  into  the 
authority  of  the  persons  by  whom  it  was  entered  into 
on  behalf  of  the  foreign  nation.  Whenever  a  right 
grows  out  of,  or  is  protected  by,  a  treaty,  it  is  sanc- 
tioned against  all  the  laws  and  judicial  decisions  of 


244  AN    EXPOSITION   OF   THE 

the  states;  and  whoever  may  have  this  right,  it  is  to 
be  protected. 

Oath  of  Office. 

444.  The  Senators  and  Representatives  before 
mentioned,  and  the  members  of  the  several  state 
legislatures,  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  states, 
are  bound  by  oath  or  affirmation  to  support  the  Con- 
stitution ;  but  no  religious  test  can  ever  be  required 
as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

445.  The  solemn  sanction  of  an  oath  or  affirmation 
is  required  of  all  officers,  legislative,  executive,  and 
judicial,  both  of  the  state  and  United  States  govern- 
ments, in  order  to  secure  their  faithful  support  of  the 
Constitution.  Members  and  officers  of  the  state 
governments  are  bound  to  take  this  oath,  because 
they  have  an  important  agency  in  carrying  the  Con- 
stitution into  effect ;  the  state  legislatures,  for  ex- 
ample, elect  the  Senate ;  and  the  state  courts  may  be 
called  on  to  decide  cases  in  whieh  are  involved  ques- 
tions arising  out  of  the  Constitution,  laws,  and  treaties 
of  the  United  States. 

No  Religious  Test 

446.  Religious  tests  as  a  qualification  to  any  office 
or  public  trust  under  the  United  States  are  prohibited, 


CONSTITUTION   OF   THE   UNITED   STATES.  245 

because  the  Constitution  contemplates  entire  freedom 
of  religious  belief  and  worship.  It,  therefore,  forbids 
any  test  or  oath  by  which  adherence  to  any  particu- 
lar sect  or  form  of  belief  shall  be  made  a  qualification 
for  office. 

Ratification  of  the  Constitution. 

447.  The  last  article  of  the  Constitution  is  as  fol- 
lows : — The  ratification  of  the  conventions  of  nine 
states  shall  be  sufficient  for  the  establishment  of  this 
Constitution  between  the  states  so  ratifying  the  same. 

448.  The  ratification  of  all  the  states  as  a  condi- 
tion to  the  establishment  of  the  Constitution,  would 
have  put  it  in  the  power  of  any  one  state  to  have 
defeated  the  wishes  of  all  the  others.  If  a  simple 
majority  of  states  had  been  sufficient,  it  might  happen 
that  seven  of  the  smaller  states  would  ratify  it,  while 
the  six  larger  would  reject  it — the  consequence  being 
the  dissolution  of  the  original  union  and  probable 
dissension  between  the  unequal  parts.  The  Conven- 
tion, therefore,  avoided  the  danger  of  requiring  a 
unanimous  ratification  on  the  one  hand,  and  a  mere 
majority  ratification  on  the  other.  As  we  have 
already  seen,  only  eleven  of  the  states  ratified  it  in 
the  first  instance  ;  Rhode  Island  and  North  Carolina 
not  ratifying  until  the  government  had  gone  into 
operation. 

21  * 


246 


AN   EXPOSITION   OF   THE 


AMENDMENTS  TO  THE  CONSTITUTION. 

History  of. 

449.  The  conventions  of  a  number  of  the  states 
having,  at  the  time  of  adopting  the  Constitution,  ex- 
pressed a  desire,  in  order  to  prevent  misconstruction 
or  abuse  of  its  powers,  that  further  declaratory  and 
restrictive  clauses  should  be  added,  something,  in 
fact,  in  the  nature  of  a  bill  of  rights,  Congress,  at 
their  first  session  in  1789,  proposed  ten  articles  as 
additional  to  and  amendatory  of  the  Constitution. 
These  articles,  having  been  ratified  by  the  requisite 
number  of  states,  that  is,  by  three-fourths,  became  a 
part  of  the  Constitution. 

450.  In  1794  another  amendment  (the  eleventh) 
was  proposed  by  Congress,  and,  in  1803,  the  twelfth. 
Both  of  these  proposed  amendments  were  ratified  by 
the  constitutional  number  of  states,  and,  equally  with 
the  first  ten  articles,  became  a  part  of  the  Constitu- 
tion. Subsequently,  to  wit,  in  1865,  the  thirteenth 
amendment  was  adopted ;  in  1866  the  fourteenth  ;  and 
in  1869  the  fifteenth. 


CONSTITUTION   OP   THE   UNITED    STATES.  247 


Character  of  the  Amendments. 
451.  It  is  well  settled  that  the  first  ten  amend- 
ments to  the  Constitution  have  no  application  to  the 
legislation  of  the  states.  They  are  exclusively  limi- 
tations of  the  power  of  the  general  government,  and 
were  intended  to  prevent  interference  with  the  rights 
of  the  states  and  of  their  citizens. 

Freedom  of  Religion,  &c. 

452.  Article  first  of  the  amendments  declares  that 
Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assem- 
ble and  to  petition  the  government  for  a  redress  of 
grievances. 

453.  The  subject  of  religion  is  left  exclusively  to 
the  state  governments.  Congress  is  prohibited  to 
create  a  religious  establishment,  or  to  intermeddle 
with  the  free  exercise  of  religion ;  nor  can  a  religious 
test  ever  be  required  as  a  qualification  for  any  office 
or  public  trust  under  the  United  States.  The  perse- 
cutions, intolerance,  and  jealousy  which  had  ever 
marked  the  establishment  of  a  state  religion  or  a 
national  church  were,  doubtless,  among  the  efficient 


248  AN    EXPOSITION   OF   THE 

reasons  why  the  Constitution  thus  forbids  any  union 
of  civil  and  ecclesiastical  authority,  or  any  alliance 
between  church  and  state.  It  regards  with  equal  eye 
all  religious  sects ;  and  prohibits  Congress  from  in- 
terfering with  the  freedom  of  public  worship.  The 
religious  liberties  of  the  people  are  left  to  the  respect- 
ive state  constitutions  and  laws.  Congress  have  no- 
thing to  do  with  the  subject. 

454.  But  while  Congress  is  deprived  of  all  legislative 
power  over  mere  religious  opinion,  it  may,  in  a  territory, 
or  other  place  over  which  the  United  States  have  exclu- 
sive jurisdiction,  legislate  with  regard  to  actions,  the 
result  of  religious  opinion  or  belief,  which  are  in  viola- 
tion of  social  duties  or  subversive  of  good  order.  Hence 
plural  marriage  or  polygamy  cannot  be  allowed  in  a 
territory,  on  the  ground  that  it  is  a  part  of  a  man's  reli- 
gious belief.  His  religious  belief  and  opinions  are  one 
thing  ;  his  practices  another.  With  the  former  Congress 
cannot  interfere  ;  but  it  may  punish  the  latter.  A  man 
may  believe  that  human  sacrifices  are  a  necessary  part 
of  religious  worship ;  but  within  the  sphere  of  its 
jurisdiction,  Congress  may  prevent  or  punish  such  sac- 
rifices. 


Freedom  of  Speech  and  of  the  Press, 

455.   When  it  is  said  that  Congress  shall  make  no 
law  abridging  the  freedom  of  speech,  or  of  the  press, 


CONSTITUTION   OF   THE   UNITED    STATES.  249 

it  is  not  meant  that  every  man  may,  with  impunity, 
speak  or  print  whatever  he  pleases,  no  matter  how 
false,  immoral,  and  malicious  such  speech  or  writing 
may  be  ;  but  only  that  uo  previous  restraints  by  Congress 
shall  be  laid  on  speech  or  publication. 

456.  While,  therefore,  every  citizen  may,  with  en- 
tire freedom,  speak,  write,  and  publish  his  sentiments 
on  all  subjects,  and  while  no  law  can  rightfully  be 
passed  by  Congress  to  restrain  or  abridge  this  free- 
dom, he  is,  nevertheless,  under  the  common  law  and  the 
statutory  law  of  the  several  states,  responsible  for  every 
abuse  of  it.  If  he  speaks  or  publishes  what  injures  any 
other  person  in  his  rights,  person,  property,  or  reputa- 
tion, without  some  legal  justification,  or  disturbs  the 
public  peace,  or  corrupts  the  public  morals,  he  is  answer- 
able in  damages  for  the  injury  to  the  individual,  and  is 
punishable,  criminally,  for  the  injury  to  society. 

457.  This  amendment  is  no  limitation  upon  the  powers 
of  the  state  governments  in. respect  to  their  owTn  citizens, 
but  operates  upon  Congress  alone.  Hence  for  freedom  of 
speech  and  of  the  press,  the  people  must  look  to  the  states 
alone.  Under  what  conditions  that  freedom  is  enjoyed, 
in  what  instances  it  is  complete  and  perfect,  such  as  the 
official  utterances  of  the  governors  of  the  several  states, 
the  testimony  of  witnesses  in  judicial  proceedings,  the 
reports  of  proceedings  in  legislative  bodies  and  the  courts, 
&c. ;  and  in  what  instances  it  is  conditionally  privileged, 
must  be  determined  by  the  laws  of  the  states. 


250  AN    EXPOSITION    OF    THE 


Right  of  Petition. 

458.  The  right  of  a  people  peaceably  to  assemble 
for  the  purpose  of  petitioning  the  government  for  a 
redress  of  grievances,  would  seem  to  be  inherent.  A 
denial  of  that  right  would  be  totally  inconsistent  with 
the  spirit  and  genius  of  free  institutions.  The  Con- 
stitution, however,  with  that  caution  which  is  equally 
observable  in  other  provisions,  expressly  recognises 
the  right,  and  prohibits  Congress  from  any  abridgment 
of  it.  But  the  right  was  not  created  by  the  amendment, 
nor  its  continuance  guaranteed,  except  as  against  con- 
gressional iuterference.  It  must  be  enforced  and  enjoyed 
trader  the  laws  of  the  states.  Nevertheless,  it  is  doubt- 
less within  the  power  of  Congress  by  appropriate  legis- 
lation to  secure  to  the  people  the  right  to  assemble  and 
petition  Congress  for  a  redress  of  grievances,  or  for  any 
nvatter  connected  with  the  powers  or  the  duties  of  the 
general  government.  This  right  is  an  attribute  of  citi- 
zenship of  the  United  States. 

Right  of  the  People  to  keep  and  bear  Arms. 

459.  The  second  amendment  is  as  follows  : — A  well 
regulated  militia  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 


CONSTITUTION   OF   THE   UNITED   STATES.  251 

460.  With  arms  in  their  hancta,  the  people  will  not 
be  likely  to  permit  the  overthrow  of  their  institutions 
by  the  unscrupulous  ambition  of  a  civil  magistrate  or 
military  chieftain.  The  very  fact  of  their  being 
armed  will  serve  as  a  check  to  any  arbitrary  or 
forcible  invasion  of  their  constitutional  rights.  Be- 
sides, a  well  regulated  militia  prevents  the  necessity 
of  keeping  on  foot  a  large  standing  army,  which,  in 
addition  to  the  expense  it  entails,  has  ever  been 
deemed  dangerous  to  the  liberties  of  a  people. 


(Quartering  Soldiers  on  Citizens. 

461.  The  third  amendment  is,  that  no  soldier  shall, 
in  time  of  peace,  be  quartered  in  any  house,  without 
the  consent  of  the  owner ;  nor  in  time  of  war,  but  in 
a  manner  to  be  prescribed  by  law. 

462.  This  is  to  prevent  the  practice  which  has 
often  prevailed  in  arbitrary  governments,  and  par- 
ticularly in  times  of  violence,  of  billeting  soldiers 
upon  private  citizens  without  regard  to  their  consent 
or  wishes.  This  is  manifestly  a  great  grievance, 
and,  in  time  of  peace,  is  prohibited.  But  in  time  of 
war  it  may  be  necessary ;  but  the  manner  of  doing  it 
must  be  prescribed  by  law. 


252  AN    EXPOSITION   OF   THE 

Search  Warrants. 

463.  The  fourth  amendment  provides  that  the 
right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated ;  and  no 
warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized. 

464.  This  refers  only  to  warrants  and  process 
issued  under  the  authority  of  the  United  States,  and 
was  doubtless  intended  to  guard  against  the  practice 
which  formerly  prevailed  in  England,  in  one  class  of 
cases,  of  issuing,  warrants  in  a  general  form,  which 
authorized  the  officer  to  search  houses  and  arrest 
persons,  without  naming  any  persons  or  places  in 
particular.  This  was  a  sort  of  roving  commission  to 
the  officer  to  search  any  place  and  arrest  any  person 
whom  he  might  suspect  of  being  the  accused  party. 
The  King's  Bench,  in  the  time  of  Chief  Justice  Pratt, 
pronounced  general  warrants  to  be  totally  illegal,  and 
Parliament  subsequently  passed  resolutions  against 
them ;  resolutions  by  which  the  personal  liberty  of 
the  subject  was  confirmed,  and  the  lawful  secrets  of 
business  and  friendship  were  rendered  inviolable. 

465.  Under  the  Constitution  of  the  United  States 


CONSTITUTION   OF   THE   UNITED   STATES.  253 

a  warrant  cannot  issue  but  upon  probable  cause,, 
supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  person 
or  things  to  be  seized.  The  warrant,  and  the  com- 
plaint under  oath  upon  which  it  is  founded,  must  not 
only  state  the  name  of  the  party,  but  also  the  time,, 
and  place,  and  nature  of  the  offence,  with  reasonable 
certainty. 

Reserved  Rights. 

466.  The  fifth,  sixth,  seventh,  and  eighth  amend- 
ments have  already  been  considered,  and  it  is  unne- 
cessary to  recur  to  them  again :  (See  sec.  371,  384,, 
388,    391.)       The    ninth  Article    declares    that    the 

enumeration  in  the  Constitution  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others* 
retained  by  the  people. 

467.  It  is  often  said  that  the  expression  of  one- 
thing  is  the  exclusion  of  another  ;  and  Bacon  remarks, 
that  enumeration  weakens  the  force  of  a  law  in  cases^ 
not  enumerated.  It  was  to  prevent  the  application', 
of  maxims  like  these,  that  the  Constitution  expressly 
declares  that  the  enumeration  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

22 


254  AN    EXPOSITION    OF   THE 

Potoers  not  delegated  reserved. 

468.  The  tenth  Article  is  as  follows  : — The  powers 
not  granted  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  or  to  the  people. 

46*9.  The  government  of  the  United  States  being 
a  government  of  limited  and  enumerated  powers,  it 
would  seem  naturally  to  follow,  that  powers  not  con- 
ferred were  withheld,  and  belonged  to  the  states  or 
to  the  people  of  the  states.  But  to  quiet  the  fears 
of  those  who  thought  differently,  this  amendment 
was  proposed  and  adopted,  by  which  it  is  in  effect 
declared  that  the  government  of  the  United  States 
shall  assume  no  powers  beyond  those  which  are 
granted. 

470.  The  eleventh  and  twelfth  amendments,  which 
relate  to  the  jurisdiction  of  the  judiciary  and  the 
mode  of  electing  the  President  and  Vice-President, 
have  been  already  considered  under  those  heads.  (See 
sec.  273  et  seq.) 

471.  The  thirteenth  amendment  declares  that 
"neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. " 
And  the  second  clause  of  this  amendment  provides 


CONSTITUTION   OF   THE   UNITED   STATES.  255* 

that  "  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation." 

Appropriate  legislation,  under  the  latter  clause,  would 
seem  to  be  limited,  strictly,  to  such  legislation  as  is  essen- 
tial to  accomplish  the  purpose  of  the  first  clause,  to  wit, 
to  eradicate  all  forms  and  incidents  of  slavery  or  invol- 
untary servitude  in  the  Uni-ted  States.  But  Congress 
cannot  legitimately,  under  pretence  of  that  purpose,  pass 
laws,  for  example,  which  perhaps  might  add  to  the  privi- 
leges or  enjoyments  of  the  state  of  freedom,  but  which, 
according  to  the  import  and  genius  of  our  constitutional 
system,  are  the  proper  subject  of  local  and  state  legislation. 

472.  The  first  paragraph  of  the  fourteenth  amend- 
ment provides  as  follows:  "All  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States,  and 
of  the  state  wherein  they  reside.  No  state  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  state  deprive  any  person  of  life,  liberty  or 
property,  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  laws." 

473.  A  person  may  be  a  citizen,  that  is,  owe  allegiance 
to  the  government  and  be  entitled  to  protection  from 
it,  and  yet  not  possess  the  qualifications  required  by 
law  to  do  certain  things  that  other  citizens  do.  For 
example,  the  mere  fact  of  citizenship  does  not  entitle 


256  AN   EXPOSITION    OF   THE 

any  person  to  exercise  the  right  of  suffrage.  He  must 
in  addition  to  such  fact  possess  the  qualifications 
required  by  law  as  the  condition  of  such  exercise. 
Consequently  when  the  first  clause  of  the  fourteenth 
amendment  declares  who  shall  be  citizens  of  the 
United  States  and  of  the  several  states,  it  does  not 
thereby  confer  on  them  the  right  to  vote. 

474.  The  privileges  and  immunities  which  the  four 
teenth  article  forbids  the  several  states  to  abridge,  are,  it 
seems,  only  those  belonging  to  citizens  of  the  United 
States,  and  not  to  those  of  the  several  states.  What  those 
privileges  and  immunities  are  it  would  be  difficult  to  de- 
termine in  a  general  definition.  Among  them,  however, 
may  be  mentioned  the  right  of  the  citizen  to  visit  the  seat 
of  government  to  assert  any  claim  he  may  have  upon 
the  government,  or  to  transact  any  business  he  may 
have  with  it,  to  seek  its  protection,  to  share  its  offices, 
to  engage  in  administering  its  functions.  He  has  the 
right  of  free  access  to  its  seaports,  through  which  all 
operations  of  foreign  commerce  are  conducted,  to  the 
sub-treasuries,  land  offices,  and  courts  of  justice  in  the 
several  states.  Another  privilege  of  a  citizen  of  the 
United  States  is  to  demand  the  protection  of  the  Fed- 
eral government  over  his  life,  liberty,  and  property 
when  on  the  high  seas,  or  within  the  jurisdiction  of  a 
foreign  government.  The  right  to  peaceably  assemble 
and  petition  for  redress  of  grievances,  the  privilege 
of  the  writ  of  habeas  corpus,  are  rights  of  the  citizen 
guaranteed  by  the  Federal  Constitution.     The  right 


CONSTITUTION    OF   THE   UNITED  STATES.  257 

to  use  the  navigable  waters  of  the  United  States,  how- 
ever they  may  penetrate  the  territories  of  the  several 
states,  all  rights  secured  to  citizens  by  treaties  with  for- 
eign nations,  are  dependent  upon  citizenship  of  the 
United  States  and  not  citizenship  of  a  state. 

475.  The  clause  we  are  considering  does  not,  it  seems, 
restrain  a  state  from  granting  the  exclusive  privilege  of 
carrying  on  any  lawful  industrial  business  (not  injurious 
to  the  community,  nor  the  proper  subject  of  police  regula- 
tion), and  prohibiting  its  exercise  by  others  than  the  mo- 
nopolists, except  upon  certain  terms.  Such  a  grant,  it  is 
held,  does  not  abridge  the  privileges  of  citizens  of  the 
United  States.*  But  a  statute  conferring  such  exclusive 
privileges  is  repealable,  if  such  exclusive  privileges  in- 
volve the  lives,  morals,  health  and  property  of  the  citi- 
zens. The  legislature  of  a  state  cannot  by  any  contract 
divest  itself  of  the  power  to  provide  for  these  objects. 

476.  The  duty  of  protecting  all  its  citizens  in  the  en- 
joyment of  an  equality  of  rights  was  originally  assumed 
by  the  states,  and  notwithstanding  the  Fourteenth  amend- 
ment, it  remains  there.  It  is  state  action  of  a  particular 
kind  that  is  prohibited.  Individual  invasion  of  individual 
rights  is  not  the  subject-matter  of  the  amendment.  If 
the  state  has  been  guilty  of  no  violation  of  its  provisions, 
the  amendment  imposes  no  duty  and  confers  no  power  un 
Congress.  It  does  not  authorize  Congress  to  create  a 
code  of  municipal  law  for  the  regulation  of  private  rights, 

*  It  is  the  right  of  the  state  courts  to  decide  finally  whether  any 
such  exclusive  privileges  are  forhidden  by  the  state  Constitutions, 

22*  R 


258  AN    EXPOSITION   OF   THE 

and  hence  the  so-called  Civil  Rights  Act,  approved  April 
20th  1871  (as  to  equal  accommodations  at  inns,  in  public 
conveyances,  places  of  amusement,  &«.)>  was  unconstitu- 
tional and  void.  But  if  state  laws  are  subversive  of  the 
fundamental  rights  specified  in  the  amendment,  then 
Congress  may  provide  modes  of  redress  against  such  laws. 

477.  The  Fourteenth  amendment  was  designed  to 
secure  to  the  colored  race,  the  enjoyment  of  all  the  civil 
rights  that,  under  the  law,  are  enjoyed  by  white  persons. 
Hence,  a  denial  to  that  race,  because  of  their  race,  of  the 
right  or  privilege  accorded  to  white  citizens,  of  partici- 
pating as  jurors  in  the  administration  of  justice,  is  a  dis- 
crimination against  the  former  inconsistent  with  the 
amendment,  and  which  Congress  by  appropriate  legisla" 
tion  may  prevent. 

478.  The  fifteenth  amendment  is  as  follows :  "The  right 
of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  state, 
on  account  of  race,  color,  or  previous  condition  of  servi- 
tude. The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation-" 

479.  The  fifteenth  amendment  gives  no  affirmative 
right  to  the  colored  man  to  vote.  It  is  intended  to  pre- 
vent discrimination  against  him  whenever  the  right  to 
vote  may  be  granted  to  others.  Hence,  at  the  time  of 
its  adoption,  those  state  constitutions  which  limited  the 
right  of  voting  to  "white"  men  alone,  became  annulled 
so  far  as  the  limitation  went,  and  thereby  gave  the  col- 
ored man  the  same  right  as  white  persons  enjoyed.  That 
right  is  an  exemption  from  discrimination  in  the  exercise 


CONSTITUTION    OF   THE   UNITED    STATES.  259 

of  the  elective  franchise  on  account  of  race,  color,  or 
previous  condition  of  servitude.  And  Congress  has 
power  to  protect  this  right. 

480.  This  amendment  does  not  confer  on  Congress  the 
power  to  regulate  the  suffrage  laws  of  the  several 
states.  But  whatever  qualifications  may  be  prescribed 
by  those  laws,  or  whatever  inequalities  may  exist  under 
them,  or  however  the  privilege  of  the  ballot  may  be 
denied  or  abridged  on  other  grounds,  no  qualification 
or  inequality,  or  denial  or  abridgment  of  the  elective 
franchise  can  be  made  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Conclusion. 

481.  We  have  thus  concluded  our  examination  of 
the  Constitution  of  the  United  States :  Adopted  at 
a  time  when  public  affairs  were  sinking  into  disorder 
and  confusion,  and  when  the  firmest  patriots  had 
begun  to  fear  that  the  benefits  of  the  revolutionary 
struggle  were  to  be  lost,  it  restored  the  public  confi- 
dence, revived  the  public  credit,  and  laid  the  founda- 
tions of  order,  stability,  and  unequalled  prosperity. 
If  we  would  preserve  it,  and  transmit  it  as  a  rich 
heritage  to  posterity,  an  habitual  reverence  for  it 
should  be  inculcated,  and  its  principles  be  studied 
and  maintained. 


APPENDIX. 


I. 

THE  DECLARATION  OF  INDEPENDENCE. 

II. 
THE  ARTICLES  OF  CONFEDERATION. 

III. 

RES.LUTIONS  AND  LETTER  TRANSMITTED  TO  CONGRESS 

BY  THE  FEDERAL  CONVENTION. 

IV. 
WASHINGTON'S  FAREWELL  ADDRESS. 


APPENDIX. 


A  DECLARATION  BY  THE  REPRESENTATIVES  OF  THE  UNITED 
STATES  OF  AMERICA,  IN  CONGRESS  ASSEMBLED. 

When,  in  the  course  of  human  events,  it  becomes  neces- 
sary for  one  people  to  dissolve  the  political  bands  which 
have  connected  them  with  another,  and  to  assume,  amoncr 
the  powers  of  the  earth,  the  separate  and  equal  station  to 
which  the  laws  of  nature  and  of  nature's  God  entitle  them, 
a  decent  respect  to  the  opinions  of  mankind  requires  that 
they  should  declare  the  causes  which  impel  them  to  the 
separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal )  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights;  that  among  these,  are  life,  liberty, 
and  the  pursuit  of  happiness.  That,  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed ;  that,  whenever 
any  form  of  government  becomes  destructive  of  these  ends, 
it  is  the  right  of  the  people  to  alter  or  to  abolish  it,  and  to 
institute  a  new  government,  laying  its  foundation  on  such 

263 


204  APPENDIX. 

principles,  and  organizing  its  powers  in  such  form,  as  to 
them  shall  seem  most  likely  to  effect  their  safety  and  happi- 
ness. Prudence,  indeed,  will  dictate  that  governments  long 
established,  should  not  be  changed  for  light  and  transient 
causes;  and,  accordingly,  all  experience  hath  shown,  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  suffer- 
able,  than  to  right  themselves  by  abolishing  the  forms  to 
which  they  are  accustomed.  But,  when  a  long  train  of 
abuses  and  usurpations,  pursuing  invariably  the  same  object, 
evinces  a  design  to  reduce  them  under  absolute  despotism, 
it  is  their  right,  it  is  their  duty,  to  throw  off  such  govern- 
ment, and  to  provide  new  guards  for  their  future  security. 
Such  has  been  the  patient  sufferance  of  these  colonies,  and 
such  is  now  the  necessity  which  constrains  them  to  alter 
their  former  systems  of  government.  The  history  of  the 
present  king  of  Great  Britain  is  a  history  of  repeated 
injuries  and  usurpations,  all  having,  in  direct  object,  the 
establishment  of  an  absolute  tyranny  over  these  States.  To 
prove  this,  let  facts  be  submitted  to  a  candid  world : 

He  has  refused  his  assent  to  laws  the  most  wholesome 
and  necessary  for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  imme- 
diate and  pressing  importance,  unless  suspended  in  their 
operation  till  his  assent  should  be  obtained;  and,  when  so 
suspended,  he  has  utterly  neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation 
of  large  districts  of  people,  unless  those  people  would  relin- 
quish the  right  of  representation  in  the  legislature ;  a  right 
inestimable  to  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual, 
uncomfortable,  and  distant  from  the  depository  of  their  public 
records,  for  the  sole  purpose  of  fatiguing  them  into  compli- 
ance with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for 


APPENDIX.  285 

opposing,  with  manly  firmness,  his  invasions  on  the  rights 
of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to 
cause  others  to  be  elected )  whereby  the  legislative  powers, 
incapable  of  annihilation,  have  returned  to  the  people  at 
large  for  their  exercise;  the  State  remaining,  in  the  mean 
time,  exposed  to  all  the  danger  of  invasion  from  without, 
and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these 
States }  for  that  purpose,  obstructing  the  laws  for  naturali- 
zation of  foreigners;  refusing  to  pass  others  to  encourage 
their  migration  hither,  and  raising  the  conditions  of  new 
appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  refus- 
ing his  assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone,  for  the 
tenure  of  their  offices,  and  the  amount  and  payment  of  their 
salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither 
swarms  of  officers  to  harass  our  people,  and  eat  out  their 
substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies, 
without  the  consent  of  our  legislature. 

He  has  affected  to  render  the  military  independent  of,  and 
superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  us  to  a  juris- 
diction foreign  to  our  constitution,  and  unacknowledged  by 
our  laws  ;  giving  his  assent  to  their  acts  of  pretended  legis- 
lation : 

For  quartering  large  bodies  of  armed  troops  among  us  : 

For  protecting  them,  by  a  mock  trial,  from  punishment, 
for  any  murders  which  they  should  commit  on  the  inhabit- 
ants of  these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world « 
23 


266  APPENDIX. 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial 
by  jury: 

For  transporting  us  beyond  seas  to  be  tried  for  pretended 
offences : 

For  abolishing  the  free  system  of  English  laws  in  a  neigh- 
boring province,  establishing  therein  an  arbitrary  govern- 
ment, and  enlarging  its  boundaries,  so  as  to  render  it  at 
once  an  example  and  fit  instrument  for  introducing  the 
same  absolute  rule  into  these  colonies : 

For  taking  away  our  charters,  abolishing  our  most  valua- 
ble laws,  and  altering,  fundamentally,  the  powers  of  our 
governments  : 

For  suspending  our  own  legislatures,  and  declaring  them- 
selves invested  with  power  to  legislate  for  us  in  all  cases 
whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out 
of  his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our 
towns,  and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign 
mercenaries  to  complete  the  works  of  death,  desolation,  and 
tyranny,  already  begun,  with  circumstances  of  cruelty  and 
perfidy  scarcely  paralleled  in  the  most  barbarous  ages,  and 
totally  unworthy  the  head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on 
the  high  seas,  to  bear  arms  against  their  country,  to  become 
the  executioners  of  their  friends  and  brethren,  or  to  fall 
themselves  by  their  hands. 

He  has  excited  domestic  insurrections  amongst  us,  and 
has  endeavored  to  bring  on  the  inhabitants  of  our  frontiers, 
the  merciless  Indian  savages,  whose  known  rule  of  warfare 
is  an  undistinguished  destruction,  of  all  ages,  sexes,  and 
conditions. 


APPENDIX.  267 

In  every  stage  of  these  oppressions,  we  have  petitioned 
for  redress,  in  the  most  humble  terms ;  our  repeated  peti- 
tions have  been  answered  only  by  repeated  injury.  A 
prince,  whose  character  is  thus  marked  by  every  act  which 
may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free  people. 

Nor  have  we  been  wanting  in  attention  to  our  British 
brethren. 

We  have  warned  them,  from  time  to  time,  of  attempts 
made  by  their  legislature  to  extend  an  unwarrantable  juris- 
diction over  us.  We  have  reminded  them  of  the  circum- 
stances of  our  emigration  and  settlement  here.  We  have 
appealed  to  their  native  justice  and  magnanimity,  and  we 
have  conjured  them,  by  the  ties  of  our  common  kindred,  to 
disavow  these  usurpations,  which  would  inevitably  interrupt 
our  connections  and  correspondence.  They,  too,  have  been 
deaf  to  the  voice  of  justice  and  consanguinity.  We  must, 
therefore,  acquiesce  in  the  necessity  which  denounces  our 
separation,  and  hold  them  as  we  hold  the  rest  of  mankind, 
enemies  in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United  States 
of  America,  in  general  congress  assembled,  appealing 
to  the  Supreme  Judge  of  the  world  for  the  rectitude  of  our 
intentions,  do,  in  the  name,  and  by  the  authority  of  the  good 
people  of  these  colonies,  solemnly  publish  and  declare,  That 
these  United  Colonies  are,  and  of  right  ought  to  be,  free 
and  independent  States;  that  they  are  absolved  from  all 
allegiance  to  the  British  crown,  and  that  all  political  con- 
nection between  them  and  the  state  of  Great  Britain,  is,  and 
ought  to  be,  totally  dissolved  \  and  that,  as  free  and  inde- 
pendent States,  they  have  full  power  to  levy  war,  con- 
clude peace,  contract  alliances,  establish  commerce,  and  to 
do  all  other  acts  and  things  which  independent  States 
may  of  right  do.     And,  for  the  support  of  this  declaration, 


268 


APPENDIX. 


with  a  firm  reliance  on  the  protection  of  DIVINE  PROVI- 
DENCE, we  mutually  pledge  to  each  other,  our  lives,  our 
fortunes,  and  our  sacred  honor. 

JOHN  HANCOCK. 


New  Hampshire. 
josiah  bartlett, 
William  Whipple, 
Matthew  Thornton. 

Massachusetts  Bay. 
Samuel  Adams, 
John  Adams, 
Robert  Treat  Paine, 
Elbridge  Gerry. 

Rhode  Island. 
Stephen  Hopkins, 
William  Ellery. 

Connecticut. 
Roger  Sherman, 
Samuel  Huntington, 
William  Williams, 
Oliver  Wolcott. 

New  York. 
William  Floyd, 
Philip  Livingston, 
Francis  Lewis, 
Lewis  Morris. 

New  Jersey. 
Richard  Stockton, 
John  Witherspoon, 


Francis  Hopkinson, 
John  Hart, 
Abraham  Clark. 

Pennsylvania. 
Robert  Morris, 
Benjamin  Rush, 
Benjamin  Franklin, 
John  Morton, 
George  Clymer, 
James  Smith, 
George  Taylor, 
James  Wilson, 
George  Ross. 

Delaware. 
Cesar  Rodney, 
George  Read, 
Thomas  M'Kean. 

Maryland. 
Samuel  Chase, 
William  Paca, 
Thcmas  Stone, 
Charles  Carroll,  of  Carrollton 

Virginia. 
George  Wythe, 
Richard  Henry  Lee, 
Thomas  Jefferson, 
Benjamin  Harrison, 


APPENDIX. 


269 


Thomas  Nelson,  Jr. 
Francis  Lightfoot  Lee, 
Carter  Braxton. 


North  Carolina. 
William  Hooper, 
Joseph  Hewes, 
John  Penn. 


South  Carolina. 
Edward  Rutledge, 
Thomas  Heyward,  Jr., 
Thomas  Lynch,  Jr., 
Arthur  Middleton. 

Georgia. 
Button  Gwinnett, 
Lyman  Hall, 
Geo.  Walton. 


II. 


ARTICLES    OF    CONFEDERATION 

And  perpetual  union  between  the  states  of  New  Hamp- 
shire, Massachusetts  Bay,  Rhode  Island  and  Providence 
Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia. 

Article  I.  The  style  of  this  Confederacy  shall  be, 
"The  United  States  of  America/' 
-^Article  II.  Each  state  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right, 
which  is  not  by  this  Confederation  expressly  delegated  to 
the  United  States  in  Congress  assembled. 

Article  III.  The  said  states  hereby  severally  enter  into 
a  firm  league  of  friendship  with  each  other,  for  their  common 
defence,  the  security  of  their  liberties,  and  their  mutual  and 
general  welfare;  binding  themselves  to  assist  each  other 
against  all  force  offered  to,  or  attacks  made  upon  them,  or 
23* 


270 


APPENDIX. 


any  of  them,  on  account  of  religion,  sovereignty,  trade,  or 
any  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutuai 
friendship  and  intercourse  among  the  people  of  the  different 
states  in  this  Union,  the  free  inhabitants  of  each  of  these 
states,  paupers,  vagabonds,  and  fugitives  from  justice  ex- 
cepted, shall  be  entitled  to  all  privileges  and  immunities  of 
free  citizens  in  the  several  states;  and  the  people  of  each 
v  state  shall  have  free  ingress  and  regress  to  and  from  any 
other  state;  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions, 
and  restrictions  as  the  inhabitants  thereof  respectively ;  pro- 
vided, that  such  restriction .  shall  not  extend  so  far  as  to 
prevent  the  removal  of  property  imported  into  any  state  to 
any  other  state,  of  which  the  owner  is  an  inhabitant;  pro- 
vided also,  that  no  imposition,  duties,  or  restriction  shall  be 
laid  by  any  state  on  the  property  of  the  United  States,  or 
either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony, 
or  other  high  misdemeanor,  in  any  state,  shall  flee  from 
justice,  and  be  found  in  any  of  the  United  States,  he  shall, 
4-upon  demand  of  the  governor  or  executive  power  of  the 
state  from  which  he  fled,  be  delivered  up  and  removed  to 
the  state  having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states 
to  the  records,  acts,  and  judicial  proceedings  of  the  courts 
and  magistrates  of  every  other  state. 

Article  V.  For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be 
0+  annually  appointed  in  such  manner  as  the  legislature  of  each 
state  shall  direct,  to  meet  in  Congress  on  the  first  Monday 
in  November,  in  every  year,  with  a  power  reserved  to  each 
state  to  recall  its  delegates,   or  any  of  them,  at  any  time 


APPENDIX.  271 

within  the  year,  and  send  others  in  their  stead  for  the  re- 
mainder of  the  year. 

No  state  shall  be  represented  in  Congress  by  less  than 
v.  two,  nor  by  more  than  seven  members;  and  no  person  shall  be 
capable  of  being  a  delegate  for  more  than  three  years  in  any 
term  of  six  years;  nor  shall  any  person,  being  a  delegate,  be 
capable  of  holding  any  office  under  the  United  States,  for 
which  he,  or  another  for  his  benefit,  receives  any  salary, 
fees,  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  a  meeting 
^  of  the  states,  and  while  they  act  as  members  of  the  commit- 
tee of  the  states. 

In  determining  questions  in  the  United  States  in  Con- 
-  gress  assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be 
impeached  or  questioned  in  any  court  or  place  out  of  Con- 
.  gress ;  and  the  members  of  Congress  shall  be  protected  in 
their  persons  from  arrests  and  imprisonment  during  the 
time  of  their  going  to,  and  from,  and  attending  on  Congress, 
except  for  treason,  felony,  or  breach  of  the  peace. 

Article  VI.  No  state,  without  the  consent  of  the 
United  States  in  Congress  assembled,  shall  send  any  embassy 
to,  or  receive  any  embassy  from,  or  enter  into  any  confer- 
ence, agreement,  alliance,  or  treaty  with  any  king,  prince, 
or  state;  nor  shall  any  person,  holding  any  office  of  profit 
or  trust  under  the  United  States,  or  any  of  them,  accept  of 
any  present,  emolument,  office,  or  title  of  any  kind  whatever 
from  any  king,  prince,  or  foreign  state ;  nor  shall  the  United 
■^States  in  Congress  assembled,  or  any  of  them,  grant  any 
title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  con- 
federation, or  alliance  whatever  between  them,  without  the 
consent  of  the  United  States  in  Congress  assembled,  speci- 


272  APPENDIX. 

fying  accurately  the  purposes  for  which  the  same  is  to  be 
eutered  into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties,  which  may  inter- 
fere with  any  stipulations  in  treaties  entered  into  by  the 
United  States  in  Congress  assembled  with  any  king,  prince, 
or  state,  in  pursuance  of  any  treaties  already  proposed  by 
Congress  to  the  Courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up,  in  time  of  peace,  by 
any  state,  except  such  number  only  as  shall  be  deemed 
necessary,  by  the  United  States  in  Congress  assembled,  for 
the  defence  of  such  state  or  its  trade ;  nor  shall  any  body  of 
forces  be  kept  up  by  any  state,  in  time  of  peace,  except 
such  number  only  as,  in  the  judgment  of  the  United  States 
—  in  Congress  assembled,  shall  be  deemed  requisite  to  garrison 
the  forts  necessary  for  the  defence  of  such  state :  but  every 
state  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred;  and  shall  provide 
_  and  constantly  have  ready  for  use,  in  public  stores,  a  due 
number  of  field-pieces  and  tents,  and  a  proper  quantity  of 
arms,  ammunition,  and  camp  equipage. 

No  state  shall  engage  in  any  war,  without  the  consent  of 
the  United  States  in  Congress  assembled,  unless  such  state 
be  actually  invaded  by  enemies,  or  shall  have  received  cer- 
tain advice  of  a  resolution  being  formed  by  some  nation  of 
Indians  to  invade  such  state,  and  the  danger  is  so  imminent 
as  not  to  admit  of  a  delay  till  the  United  States  in  Congress 
assembled  can  be  consulted;  nor  shall  any  state  grant  com- 
missions to  any  ship  or  vessels  of  war,  nor  letters  of  marque 
T  or  reprisal,  except  it  be  after  a  declaration  of  war  by  the 
United  States  in  Congress  assembled ;  and  then  only  against 
the  kingdom  or  state,  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and  under  such  regulations 
as  shall  be  established  by  the  United  States  in  Congress 
assembled,  unless  such  state  be  infested  by  pirates,  in  which 


APPENDIX.  273 

case  vessels  of  war  may  be  fitted  out  for  that  occasion,  and  kept 
so  long  as  the  danger  shall  continue,  or  until  the  United 
States  in  Congress  assembled  shall  determine  otherwise. 

Article  VII.  When  land  forces  are  raised  by  any  state 
for  the  common  defence,  all  officers  of  or  under  the  rank  of 
colonel  shall  be  appointed  by  the  legislature  of  each  state 
_  respectively ,  by  whom  such  forces  shall  be  raised,  or  in  such 
manner  as  such  state  shall  direct;  and  all  vacancies  shall  be 
filled  up  by  the  state  which  first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  ex- 
penses that  shall  be  incurred  for  the  common  defence  or 
general  welfare,  and  allowed  by  the  United  States  in  Con- 
gress assembled,  shall  be  defrayed  out  of  a  common  treasury 
which  shall  be  supplied  by  the  several  states  in  proportion 
*.  to  the  value  of  all  land  within  each  state,  granted  to  or 
surveyed  for  any  person  as  such  land  and  the  buildings  and 
improvements  thereon  shall  be  estimated,  according  to  such 
mode  as  the  United  States  in  Congress  assembled  shall, 
from  time  to  time,  direct  and  appoint.  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  legislatures  of  the  several  states,  within 
the  time  agreed  upon  by  the  United  States  in  Congress 
assembled. 

Article  IX.  The  United  States,  in  Congress  assembled, 

shall  have  the  sole  and  exclusive  right  and  power  of  deter- 

+  mining  on  peace  and  war,  except  in  the  cases  mentioned  in 

-  the  sixth  Article  :  Of  sending  and  receiving  ambassadors  : 
Entering  into  treaties  and  alliances,  provided  that  no  treaty 
of  commerce  shall  be  made  whereby  the  legislative  power  of 
the  respective  states  shall  be  restrained  from  imposing  such 

—  imposts  and  duties  on  foreigners  as  their  own  people  are 
subjected  to,  or  from  prohibiting  the  exportation  or  importa- 
tion of  any  species  of  goods  or  commodities  whatever :  Of 
establishing  rules  for  deciding,  in  all  cases,  what  captures 

S 


274  APPENDIX. 

on  land  or  water  shall  be  legal ;  and  in  what  manner  prizes, 
_  taken  by  land  or  naval  forces  in  the  service  of  the  United 
States,  shall  be  divided  or  appropriated  :  Of  granting  letters 
of  marque  and  reprisal  in  times  of  peace  :  Appointing  courts 
for  the  trial  of  piracies  and  felonies  committed  on  the  high 
seas ;  and  establishing  courts  for  receiving  and  determining, 
finally,  appeals  in  all  cases  of  captures;  provided  that  no 
member  of  Congress  shall  be  appointed  a  judge  of  any  of  the 
said  courts. 

*  The  United  States,  in  Congress  assembled,  shall  also  be 
the  last  resort,  on  appeal,  in  all  disputes  and  differences  now 
subsisting,  or  that  hereafter  may  arise  between  two  or  more 
states  concerning  boundary,  jurisdiction,  or  any  other  cause 
whatever ;  which  authority  shall  always  be  exercised  in  the 
manner  following :  Whenever  the  legislative  or  executive 
authority,  or  lawful  agent  of  any  state,  in  controversy  with 
another,  shall  present  a  petition  to  Congress,  stating  the 
matter  in  question,  and  praying  for  a  hearing,  notice  thereof 
shall  be  given,  by  order  of  Congress,  to  the  legislative  or 
executive  authority  of  the  other  state  in  controversy ;  and 
a  day  assigned  for  the  appearance  of  the  parties  by  their 
lawful  agents,  who  shall  then  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court 
for  hearing  and  determining  the  matter  in  question :  but  if 
they  cannot  agree,  Congress  shall  name  three  persons  out 
of  each  of  the  United  States ;  and  from  the  list  of  such 
persons  each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  number  shall  be  reduced  to 
thirteen ;  and  from  that  number  not  less  than  seven  nor 
more  than  nine  names,  as  Congress  shall  direct,  shall,  in  the 
presence  of  Congress,  be  drawn  out  by  lot ;  and  the  persons 
whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be 
commissioners  or  judges  to  hear  and  finally  determine  the 
controversy,  so  always  as  a  major  part  of  the  judges,  who 


APPENDIX.  27-5 

shall  hear  the  cause,  shall  agree  in  the  determination.  And 
if  either  party  shall  neglect  to  attend  at  the  day  appointed, 
without  showing  reasons  which  Congress  shall  judge  suffi- 
cient, or  being  present  shall  refuse  to  strike,  the  Congress 
shall  proceed  to  nominate  three  persons  out  of  each  state, 
and  the  Secretary  of  Congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing;  and  the  judgment  and  sentence 
of  the  court,  to  be  appointed  in  the  manner  before  pre- 
scribed, shall  be  final  and  conclusive.  And  if  any  of  the 
parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  to  appear,  or  defend  their  claim  or  cause,  the  court  shall 
nevertheless  proceed  to  pronounce  sentence  or  judgment, 
which  shall  in  like  manner  be  final  and  decisive;  the  judg- 
ment or  sentence  and  other  proceedings  being,  in  either 
case,  transmitted  to  Congress  and  lodged  among  the  Acts 
of  Congress  for  the  security  of  the  parties  concerned  :  Pro- 
vided that  every  commissioner,  before  he  sits  in  judgment, 
shall  take  an  oath,  to  be  administered  by  one  of  the  judges 
of  the  supreme  or  superior  court  of  the  state  where  the 
cause  shall  be  tried,  "  Well  and  truly  to  hear  and  determine 
the  matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favor,  affection,  or  hope  of  reward :"  Provided 
also,  that  no  state  shall  be  deprived  of  territory  for  the 
benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  states,  whose 
jurisdictions,  as  they  may  respect  such  lands  and  the  states 
which  passed  such  grants,  are  adjusted,  the  said  grants,  or 
either  of  them,  being  at  the  same  time  claimed  to  have 
"originated  antecedent  to  such  settlement  of  jurisdiction, 
shall,  on  the  petition  of  either  party  to  the  Congress  of  the 
United  States,  be  finally  determined,  as  near  as  may  be,  in 
the  same  manner  as  is  before  prescribed  for  deciding  (lis-. 


276  APPENDIX 

putes  respecting  territorial  jurisdiction    between    different 
states. 

The  United  States,  in  Congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the 
alloy  and  value  of  coin  struck  by  their  own  authority,  or  by 
that  of  the  respective  states  :  Fixing  the  standard  of  weights 
'■  and  measures  throughout  the  United  States :  Regulating 
the  trade  and  managing  all  affairs  with   the   Indians,  not 
members  of  any  of  the  states ;  provided  that  the  legislative 
4  right  of  any  state  within  its  own  limits  be  not  infringed  or 
violated  :  Establishing  and  regulating  post-offices,  from  one 
state    to   another,  throughout   all  the  United   States,    and 
;  exacting  such  postage  on  the  papers  passing  through  the 
same  as  may  be  requisite  to  defray  the  expenses  of  the  said 
office  :  Appointing  all  officers  of  the  land  forces  in  the  ser- 
vice of  the  United  States,   excepting  regimental  officers : 
Appointing  all  the  officers  of  the  naval  forces,  and  commis- 
sioning all  officers  whatever  in  the  service  of  the  United 
States  :  Making  rules  for  the  government  and  regulation  of 
**  the  land  and  naval  forces,  and  directing  their  operations. 
The  United   States,  in   Congress  assembled,  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of 
Congress,  to  be  denominated  A  committee  of  the  states, 

-  and  to  consist  of  one  delegate  from  each  state,  and  to  ap- 
point such  other  committees  and  civil  officers  as  may  be 
necessary  for  managing  the  general  affairs  of  the  United 
States  under  their  direction  :  To  appoint  one  of  their  num- 

*■  ber  to  preside )  provided  that  no  person  be  allowed  to  serve 
In  the  office  of  president  more  than  one  year  in  any  term  of 
three  years :  To  ascertain  the  necessary  sums  of  money  to 

-  be  raised  for  the  service  of  the  United  States,  and  to  appro- 
priate and  apply  the  same  for  defraying  the  public  expenses: 
To  borrow  money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  every  half  year  to  the  respective  states 


APPENDIX.  277 

an  account  of  the  sums  of  money  so  borrowed  or  emitted : 
To  build  and  equip  a  navy :  To  agree  upon  the  number  of 
land  forces,  and  to  make  requisitions  from  each  state  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  state,  which  requisition  shall  be  binding;  and  there- 
upon the  legislature  of  each  state  shall  appoint  the  regi- 
mental officers,  raise  the  men,  and  clothe,  arm,  and  equip 
them,  in  a  soldierlike  manner,  at  the  expense  of  the  United 
States;  and  the  officers  and  men  so  clothed,  armed,  and 
equipped,  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on  by  the  United  States  in  Congress  assem- 
bled :  but  if  the  United  States,  in  Congress  assembled,  shall, 
on  consideration  of  circumstances,  judge  proper  that  any 
state  should  not  raise  men,  or  should  raise  a  smaller  number 
than  its  quota,  and  that  any  other  state  should  raise  a  greater 
number  of  men  than  its  quota  thereof,  such  extra  number 
shall  be  raised,  officered,  clothed,  armed,  and  equipped  in 
the  same  manner  as  the  quota  of  such  state;  unless  the  legis- 
lature of  such  state  shall  judge  that  such  extra  number 
Cannot  be  safely  spared  out  of  the  same;  in  which  case  they 
shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such 
extra  number  as  they  judge  can  be  safely  spared:  and  the 
officers  and  men  so  clothed,  armed,  and  equipped,  shall 
march  to  the  place  appointed,  and  within  the  time  agreed 
on  by  the  United  States  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never 
engage  in  a  war;  nor  grant  letters  of  marque  and  reprisal 
in  time  of  peace;  nor  enter  into  any  treaties  or  alliances; 
nor  coin  money;  nor  regulate  the  value  thereof;  nor  ascer- 
tain the  sums  and  expenses  necessary  for  the  defence  and 
welfare  of  the  United  States,  or  any  of  them;  nor  emit  bills; 
nor  borrow  money  on  the  credit  of  the  United  States ;  nor 
appropriate  money ;  nor  agree  upon  the  number  of  vessels 
of  war  to  be  built  or  purchased,  or  the  number  of  land  or 
24 


278 


APPENDIX. 


sea  forces  to  be  raised ;  nor  appoint  a  Commander-in-Chief 
of  the  army  or  navy;  unless  nine  states  assent  to  the  same; 
nor  shall  a  question  on  any  other  point,  except  for  adjourn- 
ing from  day  to  day,  be  determined,  unless  by  the  votes  of 
a  majority  of  the  United  States  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to 
adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  so  that  no  period  of  adjournment 
be  for  a  longer  duration  than  the  space  of  six  months ;  and 
shall  publish  the  Journal  of  their  proceedings  monthly, 
except  such  parts  thereof  relating  to  treaties,  alliances,  or 
military  operations,  as  in  their  judgment  require  secrecy; 
and  the  yeas  and  nays  of  the  delegates  of  each  state  on  any 
question  shall  be  entered  on  the  Journal,  when  it  is  desired 
by  any  delegate ;  and  the  delegates  of  a  state,  or  any  of 
them,  at  his  or  their  request  shall  be  furnished  with  a 
transcript  of  the  said  Journal,  except  such  parts  as  are 
above  excepted,  to  lay  before  the  legislatures  of  the  several 
states. 

Article  X.  The  committee  of  the  states,  or  any  nine 
of  them,  shall  be  authorized  to  -execute,  in  the  recess  of 
Congress,  such  of  the  powers  of  Congress  as  the  United 
States  in  Congress  assembled,  by  the  consent  of  nine 
states,  shall  from  time  to  time  think  expedient  to  vest  them 
with ;  provided  that  no  power  be  delegated  to  the  said 
committee,  for  the  exercise  of  which,  by  the  Articles  of 
Confederation,  the  voice  of  nine  states  in  the  Congress  of 
the  United  States  assembled  is  requisite. 

Article  XI.  Canada,  acceding  to  this  Confederation, 
and  joining  in  the  measures  of  the  United  States,  shall  be 
admitted  into,  and  entitled  to  all  the  advantages  of  this 
Union;  but  no  other  colony  shall  be  admitted  into  the 
same,  unless  such  admission  be  agreed  to  by  nine  states. 

Article  XII.  All  bills  of  credit  emitted,  moneys  bor- 


APPENDIX.  279 

rowed,  and  debts  contracted  by,  or  under  the  authority  of 
Congress,  before  the  assembling  of  the  United  States,  in 
pursuance  of  the  present  Confederation,  shall  be  deemed 
and  considered  as  a  charge  against  the  United  States,  for 
payment  and  satisfaction  whereof  the  said  United  States, 
and  the  public  faith,  are  hereby  solemnly  pledged. 

Article  XIII.  Every  state  shall  abide  by  the  determi- 
nations of  the  United  States  in  Congress  assembled,  on  all 
questions  which  by  this  Confederation  are  submitted  to  them. 
And  the  Articles  of  this  Confederation  shall  be  inviolably 
observed  by  every  state;  and  the  Union  shall  be  perpetual. 
— Nor  shall  any  alteration  at  any  time  hereafter  be  made  in 
any  of  them,  unless  such  alteration  be  agreed  to  in  a  Con- 
gress of  the  United  States,  and  be  afterwards  confirmed  by 
the  legislatures  of  every  state. 

And  whereas,  it  hath  pleased  the  Great  Governor  of  the 
world  to  incline  the  hearts  of  the  legislatures  we  respec- 
tively represent  in  Congress,  to  approve  of,  and  to  authorize 
us  to  ratify  the  said  Articles  of  Confederation  and  perpetual 
Union  :  Know  ye  that  we  the  undersigned  delegates,  by 
virtue  of  the  power  and  authority  to  us  given  for  that  pur- 
pose, do  by  these  presents,  in  the  name  and  in  behalf  of 
our  respective  constituents,  fully  and  entirely  ratify  and 
confirm  each  and  every  of  the  said  Articles  of  Confedera- 
tion and  perpetual  Union,  and  all  and  singular  the  matters 
and  things  therein  contained.  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents, 
that  they  shall  abide  by  the  determinations  of  the  United 
States  in  Congress  assembled,  on  all  questions,  which  by  the 
said  Confederation  are  submitted  to  them;  and  that  the 
articles  thereof  shall  be  inviolably  observed  by  the  states 
we  respectively  represent ;  and  that  the  Union  shall  be  per- 
petual. In  witness  whereof  we  have  hereunto  set  our 
hands  in  Congress.     Done  at  Philadelphia,  in  the  state  of 


280  APPENDIX. 

Pennsylvania,  the  9th  day  of  July,  in  the  year  of  our  Lord 
1778,  and  in  the  3d  year  of  the  Independence  of  America. 


III. 


In  Convention,  Monday,  September  17,  1787. 

Present:  The  States  of  New  Hampshire,  Massachusetts, 
Connecticut,  Mr.  Hamilton  from  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South  Carolina,  and  Georgia. 

Resolved,  That  the  preceding  Constitution  be  laid  before 
the  United  States  in  Congress  assembled,  and  that  it  is  the 
opinion  of  this  convention  that  it  should  afterwards  be 
submitted  to  a  Convention  of  delegates,  chosen  in  each 
state  by  the  people  thereof,  under  the  recommendation  of 
its  legislature,  for  their  assent  and  ratification  j  and  that 
each  convention,  assenting  to  and  ratifying  the  same, 
should  give  notice  thereof,  to  the  United  States  in  Con- 
gress assembled. 

Resolved,  That  it  is  the  opinion  of  this  Convention,  that 
as  soon  as  the  conventions  of  nine  states  shall  have  ratified 
this  Constitution,  the  United  States  in  Congress  assembled 
should  fix  a  day  on  which  electors  should  be  appointed  by 
the  states  which  shall  have  ratified  the  same,  and  a  day  on 
which  the  electors  should  assemble  to  vote  for  the  President, 
and  the  time  and  place  for  commencing  proceedings  under 
this  Constitution.  That  after  such  publication  the  electors 
should  be  appointed,  and  the  Senators  and  Representatives 
elected ;  that  the  electors  should  meet  on  the  day  fixed  for 
the  election  of  the  President,  and    should  transmit  their 


APPENDIX.  281 

votes  certified,  signed,  sealed,  and  directed  as  the  Constitution 
requires,  to  the  Secretary  of  the  United  States  in  Congress 
assembled;  that  the  Senators  and  Representatives  should 
convene  at  the  time  and  place  assigned;  that  the  Senators 
should  appoint  a  president  of  the  Senate,  for  the  sole  pur- 
pose of  receiving,  opening,  and  counting  the  votes  for  Pre- 
sident; and  that,  after  he  shall  be  chosen,  the  Congress, 
together  with  the  President,  should,  without  delay,  proceed 
to  execute  this  Constitution. 

By  the  unanimous  order  of  the  Convention. 

GEORGE  WASHINGTON,  President. 

William  Jackson,  Secretary. 


In  Convention,  September  17,  1787. 

Sir  :  We  have  now  the  honor  to  submit  to  the  consi- 
deration of  the  United  States  in  Congress  assembled,  that 
Constitution  which  has  appeared  to  us  the  most  advisable. 

The  friends  of  our  country  have  long  seen  and  desired 
that  the  power  of  making  war,  peace,  and  treaties,  that  of 
levying  money  and  regulating  commerce,  and  the  corres- 
pondent executive  and  judicial  authorities,  should  be  fully 
and  effectually  vested  in  the  General  Government  of  the 
Union ;  but  the  impropriety  of  delegating  such  extensive 
trust  to  one  body  of  men  is  evident :  hence  results  the 
necessity  of  a  different  organization. 

It  is  obviously  impracticable,  in  the  Federal  Government 
of  these  States,  to  secure  all  rights  of  independent  sove- 
reignty to  each,  and  yet  provide  for  the  interest  and  safety 
of  all.  Individuals  entering  into  society  must  give  up  a 
share  of  liberty  to  preserve  the  rest.  The  magnitude  of  the 
sacrifice  must  depend  as  well  on  situation  and  circumstance 

as  on  the  object  to  be  obtained.     It  is  at  all  times  difficult 
•>4* 


282  APPENDIX. 

to  draw  with  precision  the  line  between  those  rights  which 
must  be  surrendered  and  those  which  may  be  reserved ;  and 
on  the  present  occasion  this  difficulty  was  increased  by  a 
difference  among  the  several  states  as  to  their  situation, 
extent,  habits,  and  particular  interests. 

In  all  our  deliberations  on  this  subject,  we  kept  steadily 
in  our  view  that  which  appears  to  us  the  greatest  interest 
of  every  true  American — the  consolidation  of  our  Union — 
in  which  is  involved  our  prosperity,  felicity,  safety,  perhaps 
our  national  existonce.  This  important  consideration,  seri- 
ously and  deeply  impressed  on  our  minds,  led  each  state  in 
the  Convention  to  be  less  rigid  on  points  of  inferior  magni- 
tude than  might  have  been  otherwise  expected ;  and  thus 
the  Constitution  which  we  now  present  is  the  result  of  a 
spirit  of  amity,  and  of  that  mutual  deference  and  conces- 
sion which  the  peculiarity  of  our  political  situation  rendered 
indispensable. 

That  it  will  meet  the  full  and  entire  approbation  of  every 
state,  is  not,  perhaps,  to  be  expected ;  but  each  will  doubt- 
less consider  that,  had  her  interest  been  alone  consulted, 
the  consequences  might  have  been  particularly  disagree- 
able or  injurious  to  others;  that  it  is  liable  to  as  few 
exceptions  as  could  reasonably  have  been  expected,  we 
hope  and  believe;  that  it  may  promote  the  lasting  welfare 
of  that  country  so  dear  to  us  all,  and  secure  her  freedom 
and  happiness,  is  our  most  ardent  wish. 

With  great  respect,  we  have  the  honor  to  be,  sir,  your 
excellency's  most  obedient,  humble  servants. 

By  unanimous  order  of  the  Convention. 

GEORGE  WASHINGTON,  President. 

His  Excellency  the  President  of  Congress. 


APPENDIX.  283 


IV 


WASHINGTON  S   FAREWELL  ADDRESS  TO  THE  PEOPLE  OP 
THE  UNITED  STATES,  SEPTEMBER  17,  1796. 

Friends  and  Fellow-citizens: — 

The  period  for  a  new  election  of  a  citizen  to  administer 
the  Executive  Government  of  the  United  States  being  not 
far  distant,  and  the  time  actually  arrived,  when  your 
thoughts  must  be  employed  in  designating  the  person  who 
is  to  be  clothed  with  that  important  trust,  it  appears  to 
me  proper,  especially  as  it  may  conduce  to  a  more  distinct 
expression  of  the  public  voice,  that  I  should  now  apprise 
you  of  the  resolution  I  have  formed,  to  decline  being  con- 
sidered among  the  number  of  those  out  of  whom  a  choice 
is  to  be  made. 

I  beg  you,  at  the  same  time,  to  do  me  the  justice  to  be 
assured,  that  this  resolution  has  not  been  taken,  without  a 
strict  regard  to  all  the  considerations  appertaining  to  the 
relation  which  binds  a  dutiful  citizen  to  his  country;  and 
that,  in  withdrawing  the  tender  of  service,  which  silence, 
in  my  situation,  might  imply,  I  am  influenced  by  no  dimi- 
nution of  zeal  for  your  future  interest;  no  deficiency  of 
grateful  respect  for  your  past  kindness ;  but  am  supported 
by  a  full  conviction  that  the  step  is  compatible  with  both. 

The  acceptance  of,  and  continuance  hitherto  in,  the  office 
to  which  your  suffrages  have  twice  called  me,  have  been  a 
uniform  sacrifice  of  inclination  to  the  opinion  of  duty,  and 
to  a  deference  for  what  appeared  to  be  your  desire.  I  con- 
stantly hoped  that  it  would  have  been  much  earlier  in  my 
power,  consistently  with  motives  which  I  was  not  at  liberty 


284  APPENDIX. 

to  disregard,  to  return  to  that  retirement  from  which  I  had 
been  reluctantly  drawn.  The  strength  of  my  inclination  to 
do  this,  previous  to  the  last  election,  had  even  led  to  the 
preparation  of  an  address,  to  declare  it  to  you ;  but  mature 
reflection  on  the  then  perplexed  and  critical  posture  of  our 
affairs  with  foreign  nations,  and  the  unanimous  advice  of 
persons  entitled  to  my  confidence,  impelled  me  to  abandon 
the  idea. 

I  rejoice  that  the  state  of  your  concerns,  external  as  well 
as  internal,  no  longer  renders  the  pursuit  of  inclination 
incompatible  with  the  sentiment  of  duty  or  propriety;  and 
am  persuaded,  whatever  partiality  may  be  retained  for  my 
services,  that,  in  the  preseut  circumstances  of  our  country, 
you  will  not  disapprove  my  determination  to  retire. 

The  impressions,  with  which  I  first  undertook  the  ardu- 
ous trust,  were  explained  on  the  proper  occasion.  In  the 
discharge  of  this  trust,  I  will  only  say,  that  I  have,  with 
good  intentions,  contributed  towards  the  organization  and 
administration  of  the  Government,  the  best  exertions  of 
which  a  very  fallible  judgment  was  capable.  Not  uncon- 
scious, in  the  outset,  of  the  inferiority  of  my  qualifications, 
experience  in  my  own  eyes,  perhaps  still  more  in  the  eyes 
of  others,  has  strengthened  the,  motives  to  diffidence  of 
myself;  and,  every  day,  the  increasing  weight  of  years 
admonishes  me,  more  and  more,  that  the  shade  of  retire- 
ment is  as  necessary  to  me  as  it  will  be  welcome.  Satisfied 
that,  if  any  circumstances  have  given  peculiar  value  to  my 
services,  they  were  temporary,  I  have  the  consolation  to 
believe,  that,  while  choice  and  prudence  invite  me  to  quit 
the  political  scene,  patriotism  does  not  forbid  it. 

In  looking  forward  to  the  moment  which  is  intended  to 
terminate  the  career  of  my  public  life,  my  feelings  do  not 
permit  me  to  suspend  the  deep  acknowledgment  of  that 
debt  of  gratitude  which  I  owe  to  my  beloved  country,  for 


APPENDIX.  28  3 

the  many  honors  it  has  conferred  upon  me ;  still  more  for 
the  steadfast  confidence  with  which  it  has  supported  mp  ; 
and  for  the  opportunities  I  have  thence  enjoyed,  of  mani- 
festing my  inviolable  attachment,  by  services  faithful  and 
persevering,  though  in  usefulness  unequal  to  my  zeaL  If 
benefits  have  resulted  to  our  country  from  these  services, 
let  it  always  be  remembered  to  your  praise,  and  as  an  in- 
structive example  in  our  annals,  that,  under  circumstances 
in  which  the  passions,  agitated  in  every  direction,  were 
liable  to  mislead,  amidst  appearances  sometimes  dubious, 
vicissitudes  of  fortune  often  discouraging,  in  situations  id 
which,  not  unfrequently,  want  of  success  has  countenanced 
the  spirit  of  criticism,  the  constancy  of  your  support  was 
the  essential  prop  of  the  efforts,  and  a  guarantee  of  the 
plans,  by  which  they  were  effected.  Profoundly  pene- 
trated with  this  idea,  I  shall  carry  it  with  me  to  my  grave, 
as  a  strong  incitement  to  unceasing  vows,  that  Heaven 
may  continue  to  you  the  choicest  tokens  of  its  beneficence ; 
that  your  union  and  brotherly  affection  may  be  perpetual ; 
that  the  free  Constitution,  which  is  the  work  of  your  hands, 
may  be  sacredly  maintained;  that  its  administration,  in  every 
department,  maybe  stamped  with  wisdom  and  virtue;  that, 
in  fine,  the  happiness  of  the  people  of  these  states,  under 
the  auspices  of  liberty,  may  be  made  complete  by  so  careful 
a  preservation,  and  so  prudent  a  use  of  this  blessing,  as  will 
acquire  to  them  the  glory  of  recommending  it  to  the 
applause,  the  affection,  and  adoption,  of  every  nation  which 
is  yet  a  stranger  to  it. 

Here,  perhaps,  I  ought  to  stop ;  but  a  solicitude  for  your 
welfare,  which  cannot  end  but  with  my  life,  and  the  appre- 
hension of  danger,  natural  to  that  solicitude,  urge  me,  on  an 
occasion  like  the  present,  to  offer  to  your  solemn  contem- 
plation, and  to  recommend  to  your  frequent  review,  some 
sentiments  which  are  the  result  of  much  reflection ;  of  no 


286  APPENDIX. 

inconsiderable  observation ;  and  which  appear  to  me  all  im- 
portant to  the  permanency  of  your  felicity  as  a  people. 
These  will  be  offered  to  you  with  the  more  freedom,  as  you 
can  only  see  in  them  the  disinterested  warnings  of  a  parting 
friend,  who  can  possibly  have  no  personal  motive  to  bias  his 
counsel ;  nor  can  I  forget,  as  an  encouragement  to  it,  your 
indulgent  reception  of  my  sentiments  on  a  former,  and  not 
dissimilar,  occasion.. 

Interwoven  as  is  the  love  of  liberty  with  every  ligament 
of  your  hearts,  no  recommendation  of  mine  is  necessary  to 
fortify,  or  confirm,  the  attachment. 

The  unity  of  government,  which  constitutes  you  one 
people,  is  also  now  dear  to  you.  It  is  justly  so;  for  it 
is  a  maiu  pillar  in  the  edifice  of  your  real  independence ; 
the  support  of  your  tranquillity  at  home,  your  peace  abroad  ; 
of  your  safety ;  of  your  prosperity ;  of  that  very  liberty 
which  you  so  highly  prize.  But,  as  it  is  easy  to  foresee, 
that,  from  different  causes,  and  from  different  quarters, 
much  pains  will  be  taken,  many  artifices  employed,  to 
weaken,  in  your  minds,  the  conviction  of  this  truth ;  as  this 
is  the  point  in  your  political  fortress,  against  which  the 
batteries  of  internal  and  external  enemies  will  be  most  con- 
stantly and  actively  (though  often  covertly  and  insidiously) 
directed,  it  is  of  infinite  moment  that  you  should  properly 
estimate  the  immense  value  of  your  National  Union,  to  your 
collective  and  individual  happiness ;  that  you  should  cherish 
a  cordial,  habitual,  and  immovable  attachment  to  it;  accus- 
toming yourselves  to  think  and  speak  of  it  as  of  the  palla- 
dium of  your  political  safety  and  prosperity ;  watching  for  it? 
preservation  with  jealous  anxiety ;  discountenancing  what- 
ever may  suggest  even  a  suspicion  that  it  can,  in  any 
event,  be  abandoned ;  and  indignantly  frowning  upon  the 
first  dawning  of  every  attempt  to  alienate  any  portion  of  our 


APPENDIX.  287 

country  from  the  rest,  or  to  enfeeble  the  sacred  ties  which 
now  link  together  the  various  parts. 

For  this  you  have  every  inducement  of  sympathy  and 
interest.  Citizens,  by  birth  or  choice,  of  a  common  country, 
that  country  has  a  right  to  concentrate  your  affections.  The 
name  of  American,  which  belongs  to  you  in  your  national 
capacity,  must  always  exalt  the  just  pride  of  patriotism, 
more  than  any  appellation  derived  from  local  discrimina- 
tions. With  slight  shades  of  difference,  you  have  the  same 
religion,  manners,  habits,  and  political  principles.  You  have, 
in  a  common  cause,  fought  and  triumphed  together :  the 
independence  and  liberty  you  possess  are  the  work  of  joint 
councils  and  joint  efforts,  of  common  dangers,  sufferings, 
and  successes. 

But  these  considerations,  however  powerfully  they  address 
themselves  to  your  sensibility,  are  greatly  outweighed  by 
those  which  apply  more  immediately  to  your  interest.  Here 
every  portion  of  our  country  finds  the  most  commanding 
motives  for  carefully  guarding  and  preserving  the  union  of 
the  whole. 

The  North,  in  an  unrestrained  intercourse  with  the  South, 
protected  by  the  equal  laws  of  a  common  Government,  finds, 
in  the  productions  of  the  latter,  great  additional  resources 
of  maritime  and  commercial  enterprise,  and  precious  mate- 
rials of  manufacturing  industry.  The  South,  in  the  same 
intercourse,  benefiting  by  the  agency  of  the  North,  sees  its 
agriculture  grow,  and  its  commerce  expand.  Turning  partly 
into  its  own  channels  the  seamen  of  the  North,  it  finds  its 
particular  navigation  invigorated  :  and,  while  it  contributes, 
in  different  ways,  to  nourish  and  increase  the  general  mass 
of  the  national  navigation,  it  looks  forward  to  the  protection 
of  a  maritime  strength,  to  which  itself  is  unequally  adapted. 
The  East,  in  like  intercourse  with  the  West,  already  finds, 
and  in  the  progressive  improvement  of  interior  communiea- 


288  APPENDIX. 

tions,  by  land  and  water,  will  more  and  more  find,  a  valuable 
vent  for  the  commodities  which  it  brings  from  abroad,  or 
manufactures  at  home.  The  West  derives  from  the  East 
supplies  requisite  to  its  growth  and  comfort;  and,  what  is, 
perhaps,  of  still  greater  consequence,  it  must,  of  necessity, 
owe  the  secure  enjoyment  of  indispensable  outlets  for  its 
own  productions,  to  the  weight,  influence,  and  the  future 
maritime  strength  of  the  Atlantic  side  of  the  Union,  directed 
by  an  indissoluble  community  of  interest  as  one  nation.  Any 
other  tenure  by  which  the  Wesl  can  hold  this  essential  ad- 
vantage, whether  derived  from  its  own  separate  strength,  or 
from  an  apostate  and  unnatural  connection  with  any  foreign 
power,  must  be  intrinsically  precarious. 

While,  then,  every  part  of  our  country  thus  feels  an  imme- 
diate and  particular  interest  in  union,  all  the  parts  combined 
cannot  fail  to  find,  in  the  united  mass  of  means  and  efforts, 
greater  strength,  greater  resource,  proportion  ably  greater 
security  from  external  danger,  a  less  frequent  interruption 
of  their  peace  by  foreign  nations ;  and,  what  is  of  inestima- 
ble value,  they  must  derive  from  union  an  exemption  from 
those  broils  and  wars  between  themselves,  which  so  fre- 
quently afflict  neighboring  countries,  not  tied  together  by 
the  same  governments;  which  their  own  rivalships  alone 
would  be  sufficient  to  produce,  but  which  opposite  foreign 
alliances,  attachments,  and  intrigues,  would  stimulate  and 
embitter.  Hence,  likewise,  they  will  avoid  the  necessity  of 
those  overgrown  military  establishments,  which,  under  any 
form  of  government,  are  inauspicious  to  liberty,  and  which 
are  to  be  regarded  as  particularly  hostile  to  republican 
liberty;  in  this  sense  it  is,  that  your  union  ought  to  be  con- 
sidered as  a  main  prop  of  your  liberty,  and  that  the  love  of 
the  one  ought  to  endear  to  you  the  preservation  of  the. other. 

These  considerations  speak  a  persuasive  language  to  every 
reflecting  and  virtuous  mind,  and  exhibit  the  continuance  of 


APPENDIX.  289 

the  Union  as  a  primary  object  of  patriotic  desire.  Is  there 
a  doubt  whether  a  common  Government  can  embrace  so 
large  a  sphere  ?  Let  experience  solve  it.  To  listen  to  mere 
speculation,  in  such  a  case,  were  criminal.  We  are  autho- 
rized to  hope,  that  a  proper  organization  of  the  whole,  with 
the  auxiliary  agency  of  governments  for  the  respective  sub- 
divisions, will  afford  a  happy  issue  to  the  experiment.  It  is 
well  worth  a  fair  and  full  experiment.  With  such  powerful 
and  obvious  motives  to  Union,  affecting  all  parts  of  our 
country,  while  experience  shall  not  have  demonstrated  its 
impracticability,  there  will  always  be  reason  to  distrust  the 
patriotism  of  those,  who,  in  any  quarter,  may  endeavor  to 
weaken  its  bands. 

In  contemplating  the  causes  which  may  disturb  our 
Union,  it  occurs,  as  matter  of  serious  concern,  that  any 
ground  should  have  been  furnished  for  characterizing  parties 
by  geographical  discriminations — Northern  and  Southern — 
Atlantic  and  Western  :  whence  designing  men  may  endea- 
vor to  excite  a  belief  that  there  is  a  real  difference  of  local 
interests  and  views.  One  of  the  expedients  of  party  to 
acquire  influence  within  particular  districts,  is  to  misrepre- 
sent the  opinions  and  aims  of  other  districts.  You  cannot 
shield  yourselves  too  much  against  the  jealousies  and  heart- 
burnings which  spring  from  these  misrepresentations ;  they 
tend  to  render  alien  to  each  other  those  who  ought  to  be 
bound  together  by  fraternal  affection.  The  inhabitants  of 
our  western  country  have  lately  had  a  useful  lesson  on  this 
head ;  they  have  seen  in  the  negotiation  by  the  executive, 
and  in  the  unanimous  ratification  by  the  Senate,  of  the 
treaty  with  Spain,  and  in  the  universal  satisfaction  at  that 
event  throughout  the  United  States,  a  decisive  proof  how 
unfounded  were  the  suspicions  propagated  among  them  of  a 
policy  in  the  general  government,  and  in  the  Atlantic  states, 
unfriendly  to  their  interests  in  regard  to  the  Mississippi : 
25  T 


290  APPENDIX. 

they  have  been  witnesses  to  the  formation  of  two  treaties — 
that  with  Great  Britain  and  that  with  Spain,  which  secure 
to  them  everything  they  could  desire  in  respect  to  our 
foreign  relations,  towards  confirming  their  prosperity.  Will 
it  not  be  their  wisdom  to  rely,  for  the  preservation  of  these 
advantages,  on  the  Union  by  which  they  were  procured  ? 
Will  they  not  henceforth  be  deaf  to  those  advisers,  if  such 
there  are,  who  would  sever  them  from  their  brethren  and 
connect  them  with  aliens  ? 

To  the  efficacy  and  permanency  of  your  Union,  a  govern- 
ment for  the  whole  is  indispensable.  No  alliances,  however 
strict,  between  the  parties,  can  be  an  adequate  substitute ; 
they  must  inevitably  experience  the  infractions  and  inter- 
ruptions which  all  alliances,  in  all  times,  have  experienced. 
Sensible  of  this  momentous  truth,  you  have  improved  upon 
your  first  essay  by  the  adoption  of  a  Constitution  of  govern- 
ment better  calculated  than  your  former  for  an  intimate 
Union,  and  for  the  efficacious  management  of  your  common 
concerns.  This  government,  the  offspring  of  our  own 
choice,  uninfluenced  and  unawed,  adopted  upon  full  inves- 
tigation and  mature  deliberation,  completely  free  in  its 
principles,  in  the  distribution  of  its  powers,  uniting  security 
with  energy,  and  containing  within  itself  a  provision  for  its 
own  amendment,  has  a  just  claim  to  your  confidence  and 
your  support.  Respect  for  its  authority,  compliance  with 
its  laws,  acquiescence  in  its  measures,  are  duties  enjoined 
by  the  fundamental  maxims  of  true  liberty.  The  basis  of 
our  political  systems  is  the  right  of  the  people  to  make  and 
to  alter  their  constitutions  of  government:  but  the  Constitu- 
tion which  at  any  time  exists,  till  changed  by  an  explicit 
and  authentic  act  of  the  whole  people,  is  sacredly  obligatory 
upon  all.  The  very  idea  of  the  power,  and  the  right  of  the 
people  to  establish  government,  presupposes  the  duty  of 
every  individual  to  obey  the  established  government. 


APPENDIX.  291 

All  obstructions  to  the  execution  of  the  lawsj  all  combi- 
nations and  associations,  under  whatever  plausible  character, 
with  the  real  design  to  direct,  control,  counteract,  or  awe 
the  regular  deliberation  and  action  of  the  constituted  autho- 
rities, are  destructive  of  this  fundamental  principle,  and  of 
fatal  tendency.  They  serve  to  organize  faction,  to  give  it 
an  artificial  and  extraordinary  force ;  to  put  in  the  place  of 
the  delegated  will  of  the  nation  the  will  of  a  party,  often  a 
small  but  artful  and  enterprising  minority  of  the  commu- 
nity; and,  according  to  the  alternate  triumphs  of  different 
parties,  to  make  the  public  administration  the  mirror  of  the 
ill-concerted  and  incongruous  projects  of  faction,  rather  than 
the  organ  of  consistent  and  wholesome  plans,  digested  by 
common  counsels  and  modified  by  mutual  interests. 

However  combinations  or  associations  of  the  above  de- 
scription may  now  and  then  answer  popular  ends,  they  are 
likely,  in  the  course  of  time  and  things,  to  become  potent 
engines  by  which  cunning,  ambitious,  and  unprincipled  men 
will  be  enabled  to  subvert  the  power  of  the  people,  and  to 
usurp  for  themselves  the  reins  of  government ;  destroying, 
afterwards,  the  very  engines  which  had  lifted  them  to  unjust 
dominion. 

Towards  the  preservation  of  your  government,  and  the 
permanency  of  your  present  happy  state,  it  is  requisite  not 
only  that  you  steadily  discountenance  irregular  oppositions 
to  its  acknowledged  authority,  but  also  that  you  resist  with 
care  the  spirit  of  innovation  upon  its  principles,  however 
specious  the  pretext.  .One  method  of  assault  may  be  to 
effect,  in  the  forms  of  the  Constitution,  alterations  which 
will  impair  the  energy  of  the  system,  and  thus  to  undermine 
what  cannot  be  directly  overthrown.  In  all  the  changes  to 
which  you  may  be  invited,  remember  that  time  and  habit 
are  at  least  as  necessary  to  fix  the  true  character  of  govern- 
ments as  of  other  human  institutions;  that  experience  is 


292  APPENDIX. 

the  surest  standard  by  which  to  test  the  real  tendency  of 
the  existing  constitution  of  a  country;  that  facility  in 
changes,  upon  the  credit  of  mere  hypothesis  and  opinion, 
exposes  to  perpetual  change  from  the  endless  variety  of 
hypothesis  and  opinion ;  and  remember,  especially,  that  for 
the  efficient  management  of  your  common  interests,  in  a  coun- 
try so  extensive  as  yours,  a  government  of  as  much  vigor  as 
is  consistent  with  the  perfect  security  of  liberty,  is  indispen- 
sable. Liberty  itself  will  find  in  such  a  government,  with 
powers  properly  distributed  and  adjusted,  its  surest  guardian. 
It  is,  indeed,  little  else  than  a  name  where  the  government 
is  too  feeble,  to  withstand  the  enterprises  of  faction,  to  con- 
fine each  member  of  the  society  within  the  limits  prescribed 
by  the  laws,  and  to  maintain  all  in  the  secure  and  tranouil 
enjoyment  of  the  rights  of  person  and  property. 

I  have  already  intimated  to  you  the  danger  of  parties  in 
the  state,  with  particular  reference  to  the  founding  of  them 
on  geographical  discriminations.  Let  me  now  take  a  more 
comprehensive  view,  and  warn  you,  in  the  most  solemn 
manner,  against  the  baneful  effect  of.  the  spirit  of  party 
generally. 

1  This  spirit,  unfortunately,  is  inseparable  from  our  nature, 
having  its  root  in  the  strongest  passions  of  the  human  mind. 
It  exists  under  different  shapes  in  all  governments,  more  or 
less  stifled,  controlled,  or  repressed;  but  in  those  of  the 
popular  form  it  is  seen  in  its  greatest  rankness,  and  is  truly 
their  worst  enemy. 

The  alternate  domination  of  one  faction  over  another, 
sharpened  by  the  spirit  of  revenge  natural  to  party  dissen- 
sion, which,  in  different  ages  and  countries,  has  perpetrated 
the  most  horrid  enormities,  is  itself  a  frightful  despotism. 
But  this  leads,  at  length,  to  a  more  formal  and  permanent 
despotism.  The  disorders  and  miseries  which  result,  gra- 
dually incline  the  minds  of  men  to  seek  security  and  repose 


APPENDIX. 


293 


in  the  absolute  power  of  an  individual;  and,  sooner  or  later, 
the  chief  of  some  prevailing  faction,  more  able  or  more 
fortunate  than  his  competitors,  turns  this  disposition  to  the 
purposes  of  his  own  elevation  on  the  ruins  of  public  liberty. 

Without  looking  forward  to  an  extremity  of  this  kind 
(which  nevertheless  ought  not  to  be  entirely  out  of  sight), 
the  common  and  continual  mischiefs  of  the  spirit  of  party 
are  sufficient  to  make  it  the  interest  and  duty  of  a  wise 
people  to  discourage  and  restrain  it. 

It  serves  always  to  distract  the  public  councils,  and 
enfeeble  the  public  administration.  It  agitates  the  commu- 
nity with  ill-founded  jealousies  and  false  alarms  ;  kindles  the 
animosity  of  one  part  against  another ;  foments,  occasionally, 
riot  and  insurrection.  It  opens  the  door  to  foreign  influ- 
ence and  corruption,  which  find  a  facilitated  access  to  the 
government  itself  through  the  channels  of  party  passions. 
Thus  the  policy  and  the  will  of  one  country  are  subjected  to 
the  policy  and  will  of  another. 

There  is  an  opinion  that  parties,  in  free  countries,  are 
useful  checks  upon  the  administration  of  the  government, 
and  serve  to  keep  alive  the  spirit  of  liberty.  This,  within 
certain  limits,  is  probably  true;  and  in  governments  of  a 
monarchical  cast,  patriotism  may  look  with  indulgence,  if 
not  with  favor,  upon  the  spirit  of  party.  But  in  those  of 
the  popular  character,  in  governments  purely  elective,  it  is 
a  spirit  not  to  be  encouraged.  From  their  natural  tendency 
it  is  certain  there  will  always  be  enough  of  that  spirit  for 
every  salutary  purpose.  And  there  being  constant  danger 
of  excess,  the  effort  ought  to  be,  by  force  of  public  opinion, 
to  mitigate  and  assuage  it.  A  fire  not  to  be  quenched,  it 
demands  a  uniform  vigilance  to  prevent  its  bursting  into  a 
flame,  lest,  instead  of  warming,  it  should  consume. 

It  is  important,  likewise,  that  the  habits  of  thinking  in 
a  free    country  should  inspire   caution  in  those  intrusted 


294 


APPENDIX. 


with  its  administration,  to  confine  themselves  within  their 
respective  constitutional  spheres,  avoiding,  in  the  exercise 
of  the  powers  of  one  department,  to  encroach  upon  another. 
The  spirit  of  encroachment  tends  to  consolidate  the  powers 
of  all  the  departments  in  one,  and  thus  to  create,  whatever 
the  form  of  government,  a  real  despotism.  A  just  estimate 
of  that  love  of  power,  and  proneness  to  abuse  it,  which  pre- 
dominates in  the  human  heart,  is  sufficient  to  satisfy  us  of 
the  truth  of  this  position.  The  necessity  of  reciprocal 
checks  in  the  exercise  of  political  power  by  dividing  and 
distributing,  it  into  different  depositories,  and  constituting 
each  the  guardian  of  the  public  weal  against  invasions  by 
the  others,  has  been  evinced  by  experiments,  ancient  and 
modern ;  some  of  them  in  our  own  country,  and  under  our 
own  eyes.  To  preserve  them  must  be  as  necessary  as  to 
institute  them.  If,  in  the  opinion  of  the  people,  the  distri- 
bution or  modification  of  the  constitutional  powers  be,  in  any 
particular,  wrong,  let  it  be  corrected  by  an  amendment  in 
the  way  which  the  Constitution  designates.  But  let  there 
be  no  change  by  usurpation ;  for  though  this,  in  one  in- 
stance, may  be  the  instrument  of  good,  it  is  the  customary 
weapon  by  which  free  governments  are  destroyed.  The 
precedent  must  always  greatly  overbalance,  in  permanent 
evil,  any  partial  or  transient  benefit  which  the  use  can  at 
any  time  yield. 

Of  all  the  dispositions  and  habits  which  lead  to  political 
prosperity,  religion  and  morality  are  indispensable  supports. 
In  vain  would  that  man  claim  the  tribute  of  patriotism  who 
should  labor  to  subvert  these  great  pillars  of  human  happi- 
ness, these  firmest  props  of  the  duties  of  men  and  citizens. 
The  mere  politician,  equally  with  the  pious  man,  ought  to 
respect  and  to  cherish  them.  A  volume  could  not  trace  all 
their  connections  with  private  and  public  felicity.  Let  it 
simply  be  asked,  where   is  the  security  for  property,   for 


APPENDIX.  295 

reputation,  for  life,  if  the  sense  of  religious  obligation  desert 
the  oaths  which  are  the  instruments  of  investigation  in 
courts  of  justice  ?  And  let  us  with  caution  indulge  the 
supposition,  that  morality  can  be  maintained  without  reli- 
gion. Whatever  may  be  conceded  to  the  influence  of  refined 
education  on  minds  of  peculiar  structure,  reason  and  expe- 
rience both  forbid  us  to  expect  that  national  morality  can 
prevail  in  exclusion  of  religious  principles. 

It  is  substantially  true,  that  virtue  or  morality  is  a  neces- 
sary spring  of  popular  government.  The  rule,  indeed, 
extends,  with  more  or  less  force,  to  every  species  of  free 
government.  Who,  that  is  a  sincere  friend  to  it,  can  look 
with  indifference  upon  attempts  to  shake  the  foundation  of 
the  fabric  ? 

Promote,  then,  as  an  object  of  primary  importance,  insti- 
tutions for  the  general  diffusion  of  knowledge.  In  propor- 
tion as  the  structure  of  a  government  gives  force  to  public 
opinion,  it  is  essential  that  public  opinion  should  be  enlight- 
ened. 

As  a  very  important  source  of  strength  and  security, 
cherish  public  credit.  One  method  of  preserving  it  is  to 
use  it  as  sparingly  as  possible;  avoiding  occasions  of  ex- 
pense by  cultivating  peace,  but  remembering  also  that  timely 
disbursements  to  prepare  for  danger,  frequently  prevent 
much  greater  disbursements  to  repel  it;  avoiding,  likewise, 
the  accumulation  of  debt  not  only  by  shunning  occasions  of 
expense  but  by  vigorous  exertions,  in  time  of  peace,  to 
discharge  the  debts  which  unavoidable  wars  may  have 
occasioned ;  not  ungenerously  throwing  upon  posterity  the 
burden  which  we  ourselves  ought  to  bear.  The  execution 
of  these  maxims  belongs  to  your  representatives,  but  it  is 
necessary  that  public  opinion  should  co-operate.  To  facili- 
tate to  them  the  performance  of  their  duty,  it  is  essential 
that  you  should  practically  bear  in   mind  that  towards  the 


296  APPENDIX. 

payment  of  debts  there  must  be  revenue;  that  to  have 
revenue  there  must  be  taxes;  that  no  taxes  can  be  devised 
which  are  not  more  or  less  inconvenient  and  unpleasant; 
that  the  intrinsic  embarrassment  inseparable  from  the  selec- 
tion of  the  proper  objects  (which  is  always  a  choice  of 
difficulties)  ought  to  be  a  decisive  motive  for  a  candid 
construction  of  the  conduct  of  the  government  in  making 
it,  and  for  a  spirit  of  acquiescence  in  the  measures  for 
obtaining  revenue,  which  the  public  exigencies  may  at  any 
time  dictate. 

Observe  good  faith  and  justice  towards  all  nations;  culti- 
vate peace  and  harmony  with  all.  Religion  and  morality 
enjoin  this  conduct;  and  can  it  be  that  good  policy  does 
not  equally  enjoin  it?  It  will  be  worthy  of  a  free,  enlight- 
ened, and,  at  no  distant  period,  a  great  nation,  to  give  to 
mankind  the  magnanimous  and  too  novel  example  of  a 
people  always  guided  by  an  exalted  justice  and  benevolence. 
Who  can  doubt  that,  in  the  course  of  time  and  things,  the 
fruits  of  such  a  plan  would  richly  repay  any  temporary 
advantages  which  might  be  lost  by  a  steady  adherence  to 
it  ?  Can  it  be  that  Providence  has  not  connected  the  per- 
manent felicity  of  a  nation  with  its  virtue?  The  experiment 
at  least  is  recommended  by  every  sentiment  which  ennobles 
human  nature.  Alas !  is  it  rendered  impossible  by  its  vices  ? 

In  the  execution  of  such  a  plan  uothing  is  more  essential 
than  that  permanent  inveterate  antipathies  against  particular 
nations,  and  passionate  attachments  for  others,  should  be 
excluded ;  and  that,  in  place  of  them,  just  and  amicable 
feelings  towards  all  should  be  cultivated.  The  nation  which 
indulges  towards  another  an  habitual  hatred,  or  an  habitual 
fondness,  is,  in  some  degree,  a  slave.  It  is  a  slave  to  its 
animosity  or  to  its  affection;  either  of  which  is  sufficient 
to  lead  it  astray  from  its  duty  and  its  interest.  Antipathy 
in  one  nation  against  another  disposes  each  more  readily  to 


APPENDIX.  297 

offer  insult  and  injury,  to  lay  hold  of  slight  causes  of  um- 
brage, and  to  be  haughty  and  intractable  when  accidental 
or  trifling  occasions  of  dispute  occur.  Hence  frequent 
collisions,  obstinate,  envenomed,  and  bloody  contests.  The 
nation,  prompted  by  ill-will  and  resentment,  sometimes 
impels  to  war  the  government,  contrary  to  the  best  calcula- 
tions of  policy.  The  government  sometimes  participates  in 
the  national  propensity,  and  adopts,  through  passion,  what 
reason  would  reject;  at  other  times  it  makes  the  animosity 
of  the  nation  subservient  to  projects  of  hostility,  instigated 
by  pride,  ambition,  and  other  sinister  and  pernicious  motives. 
The  peace  often,  sometimes  perhaps  the  liberty,  of  nations 
has  been  the  victim. 

So  likewise  a  passionate  attachment  of  one  nation  to 
another  produces  a  variety  of  evils.  Sympathy  for  the 
favorite  nation,  facilitating  the  illusion  of  an  imaginary  com- 
mon interest,  in  cases  where  no  real  common  interest  exists, 
and  infusing  into  one  the  enmities  of  the  other,  betrays  the 
former  into  a  participation  in  the  quarrels  and  wars  of  the 
latter,  without  adequate  inducement  or  justification.  It 
leads  also  to  concessions  to  the  favorite  nation  of  privileges 
denied  to  others,  which  is  apt  doubly  to  injure  the  nations 
making  the  concessions;  by  unnecessarily  parting  with  what 
ought  to  have  been  retained,  and  by  exciting  jealousy,  ill- 
will,  and  a  disposition  to  retaliate  in  the  parties  from  whom 
equal  privileges  are  withheld;  and  it  gives  to  ambitious, 
corrupted,  or  deluded  citizens  (who  devote  themselves  to 
the  favorite  nation)  facility  to  betray,  or  sacrifice  the  interest 
of  their  own  country  without  odium  ;  sometimes  even  with 
popularity;  gilding  with  the  appearance  of  a  virtuous  sense 
of  obligation  a  commendable  deference  for  public  opinion, 
or  a  laudable  zeal  for  public  good,  the  base  or  foolish  com- 
pliances of  ambition,  corruption,  or  infatuation. 

As  avenues   to  foreign    influence  in   innumerable  ways, 


298  APPENDIX. 

such  attachments  are  particularly  alarming  to  the  truly 
enlightened  and  independent  patriot.  How  many  opportu- 
nities do  they  afford  to  tamper  with  domestic  factions,  to 
practise  the  art  of  seduction,  to  mislead  public  opinion,  to 
influence  or  awe  the  public  councils  !  Such  an  attachment 
of  a  small  or  weak  towards  a  great  and  powerful  nation 
dooms  the  former  to  be  the  satellite  of  the  latter. 

Against  the  insidious  wiles  of  foreign  influence  (I  con- 
jure you  to  believe  me,  fellow-citizens),  the  jealousy  of  a 
free  people  ought  to  be  constantly  awake ;  since  history  and 
experience  prove  that  foreign  influence  is  one  of  the  most 
baneful  foes  of  republican  government.  But  that  jealousy, 
to  be  useful,  must  be  impartial ;  else  it  becomes  the  instru- 
ment of  the  very  influence  to  be  avoided,  instead  of  a 
defence  against  it.  Excessive  partiality  for  one  foreign 
nation,  and  excessive  dislike  for  another,  cause  those  whom 
they  actuate  to  see  danger  only  on  one  side,  and  serve  to 
veil,  and  even  second  the  arts  of  influence  on  the  other. 
Real  patriots,  who  may  resist  the  intrigues  of  the  favorite, 
are  liable  to  become  suspected  and  odious  j  while  its  tools 
and  dupes  usurp  the  applause  and  confidence  of  the  people 
to  surrender  their  interests. 

The  great  rule  of  conduct  for  us,  in  regard  to  foreign 
nations,  is,  in  extending  our  commercial  relations,  to  have 
with  them  as  little  political  connection  as  possible.  So  far 
as  we  have  already  formed  engagements,  let  them  be  fulfilled 
with  perfect  good  faith.     Here  let  us  stop. 

Europe  has  a  set  of  primary  interests,  which  to  us  have 
none,  or  a  very  remote  relation.  Hence  she  must  be  en- 
gaged in  frequent  controversies,  the  causes  of  which  are 
essentially  foreign  to  our  concerns.  Hence,  therefore,  it 
must  be  unwise  in  us  to  implicate  ourselves,  by  artificial 
ties,   in    the   ordinary  vicissitudes   of   her   politics,   or  the 


APPENDIX. 


299 


ordinary  combinations  and  collisions  of  her  friendships  or 
enmities. 

Our  detached  and  distant  situation  invites  and  enables  us 
to  pursue  a  different  course.  If  we  remain  one  people, 
under  an  efficient  government,  the  period  is  not  far  off  when 
we  may  defy  material  injury  from  external  annoyance;  when 
we  may  take  such  an  attitude  as  will  cause  the  neutrality 
we  may  at  any  time  resolve  upon,  to  be  scrupulously 
respected  ;  when  belligerent  nations,  under  the  impossibility 
of  making  acquisitions  upon  us,  will  not  lightly  hazard  the 
giving  us  provocation  ;  when  we  may  choose  peace  or  war, 
as  our  interest,  guided  by  justice,  shall  counsel. 

Why  forego  the  advantages  of  so  peculiar  a  situation  ? 
Why  quit  our  own  to  stand  upon  foreign  ground  ?  Why, 
by  interweaving  our  destiny  with  that  of  any  part  of  Europe, 
entangle  our  peace  and  prosperity  in  the  toils  of  European 
ambition,  rivalship,  interest,  humor,  or  caprice  ? 

It  is  our  true  policy  to  steer  clear  of  permanent  alliances 
with  any  portion  of  the  foreign  world;  so  far,  I  mean,  as 
we  are  now  at  liberty  to  do  it;  for  let  me  not  be  misunder- 
stood as  capable  of  patronizing  infidelity  to  existing  engage- 
ments. I  hold  the  maxim  no  less  applicable  to  public  than 
to  private  affairs,  that  honesty  is  always  the  best  policy.  I 
repeat  it,  therefore,  let  those  engagements  be  observed  in 
their  genuine  sense.  But,  in  my  opinion,  it  is  unnecessary 
uid  would  be  unwise  to  extend  them. 

Taking  care  always  to  keep  ourselves,  by  suitable  esta- 
blishments, on  a  respectable  defensive  posture,  we  may 
safely  trust  to  temporary  alliances  for  extraordinary  emer- 
gencies. 

Harmony,  and  a  liberal  intercourse  with  all  nations,  are 
recommended  by  policy,  humanity,  and  interest.  But  even 
our  commercial  policy  should  hold  an  equal  and  impartial 
hand ;    neither  seeking   nor    granting    exclusive  favors    or 


300  APPENDIX. 

preferences;  consulting  the  natural  course  of  things;  dif- 
fusing and  diversifying,  by  gentle  means,  the  streams  of 
commerce,  but  forcing  nothing;  establishing  with  powers 
so  disposed,  in  order  to  give  trade  a  stable  course,  to  define 
the  rights  of  our  merchants,  and  to  enable  the  government 
to  support  them,  conventional  rules  of  intercourse,  the  best 
that  present  circumstances  and  mutual  opinions  will  permit, 
but  temporary  and  liable  to  be,  from  time  to  time,  aban- 
doned or  varied,  as  experience  and  circumstances  shall 
dictate ;  constantly  keeping  in  view  that  it  is  folly  in  one 
nation  to  look  fur  disinterested  favors  from  another;  that  it 
must  pay,  with  a  portion  of  its  independence,  for  whatever 
it  may  accept  under  that  character;  that  by  such  acceptance 
it  may  place  itself  in  the  condition  of  having  given  equiva- 
lents for  nominal  favors,  and  yet  of  being  reproached  with 
ingratitude  for  not  giving  more.  There  can  be  no  greater 
error  than  to  expect  or  calculate  upon  real  favors  from 
nation  to  nation.  It  is  an  illusion  which  experience  must 
cure,  which  a  just  pride  ought  to  discard. 

In  offering  to  you,  my  countrymen,  these  counsels  of  an 
old  and  affectionate  friend,  I  dare  not  hope  they  will  make 
the  strong  and  lasting  impression  I  could  wish;  that  they 
will  control  the  usual  current  of  the  passions,  or  prevent  our 
nation  from  running  the  course  which  has  hitherto  marked 
the  destiny  of  nations;  but  if  I  may  even  flatter  myself  that 
they  may  be  productive  of  some  partial  benefit,  some  occa- 
sional good ;  that  they  may  now  and  then  recur  to  moderate 
the  fury  of  party  spirit,  to  warn  against  the  mischief  of 
foreign  intrigues,  to  guard  against  the  impostures  of  pre- 
tended patriotism;  this  hope  will  be  a  full  recompense  for 
the  solicitude  for  your  welfare  by  which  they  have  been 
dictated. 

How  far,  in  the  discharge  of  my  official  duties,  I  have 
been  guided  by  the  principles  which  have  been  delineated; 


APPENDIX.  301 

the  public  records  and  other  evidences  of  my  conduct  must 
witness  to  you  and  the  world.  To  myself  the  assurance  of 
my  own  conscience  is,  that  I  have  at  least  believed  myself 
to  be  guided  by  them. 

In  relation  to  the  still  subsisting  war  in  Europe,  my  pro- 
clamation of  the  22d  of  April,  1793,  is  the  index  to  my 
plan.  Sanctioned  by  your  approving  voice,  and  by  that  of 
your  Representatives  in  both  Houses  of  Congress,  the  spirit 
of  that  measure  has  continually  governed  me,  uninfluenced 
by  any  attempts  to  deter  or  divert  me  from  it. 

After  deliberate  examination,  with  the  aid  of  the  best 
lights  I  could  obtain,  I  was  well  satisfied  that  our  country, 
under  all  the  circumstances  of  the  case,  had  a  right  to  take, 
and  was  bound  in  duty  and  interest  to  take,  a  neutral  posi- 
tion. Having  taken  it,  I  determined,  as  far  as  should 
depend  upon  me,  to  maintain  it  with  moderation,  perseve- 
rance, and  firmness. 

The  considerations  which  respect  the  right  to  hold  thus 
conduct  it  is  not  necessary  on  this  occasion  to  detail.  I 
will  only  observe,  that,  according  to  my  understanding  of  the 
matter,  that  right,  so  far  from  being  denied  by  any  of  the 
belligerent  powers,  has  been  virtually  admitted  by  all. 

The  duty  of  holding  a  neutral  conduct  may  be  inferred., 
without  anything  more,  from  the  obligation  which  justice 
and  humanity  impose  on  every  nation,  in  cases  in  which  ifc 
is  free  to  act,  to  maintain  inviolate  the  relations  of  peace- 
and  amity  towards  other  nations. 

The  inducements  of  interest  for  observing  that  conduct 
will  best  be  referred  to  your  own  reflections  and  experience. 
With  me  a  predominant  motive  has  been  to  endeavor  to 
gain  time  to  our  country  to  settle  and  mature  its  yet  receut 
institutions,  and  to  progress,  without  interruption,  to  that 
degree  of  strength  and  consistency  which  is  necessary  to 
give  it,  humanly  speaking,  the  command  of  its  own  fortunes 
26 


302 


APPENDIX. 


Though,  in  reviewing  the  incidents  of  my  administration, 
I  am  unconscious  of  intentional  error,  I  am  nevertheless  too 
sensible  of  my  defects  not  to  think  it  probable  that  I  may 
have  committed  many  errors.  Whatever  they  may  be,  I 
fervently  beseech  the  Almighty  to  avert  or  mitigate  the 
evils  to  which  they  may  tend.  I  shall  also  carry  with  me 
the  hope  that  my  country  will  never  cease  to  view  them 
with  indulgence )  and  that,  after  forty-five  years  of  my  life 
dedicated  to  its  service  with  an  upright  zeal,  the  faults  of 
incompetent  abilities  will  be  consigned  to  oblivion,  as  myself 
must  soon  be  to  the  mansions  of  rest. 

Relying  on  its  kindness  in  this,  as  in  other  things,  and 
actuated  by  that  fervent  love  towards  it  which  is  so  natural 
to  a  man  who  views  in  it  the  native  soil  of  himself  and  his 
progenitors  for  several  generations,  I  anticipate,  with  pleas- 
ing expectation,  that  retreat  in  which  I  promise  myself  to 
realize,  without  alloy,  the  sweet  enjoyment  of  partaking,  in 
the  midst  of  my  fellow- citizens,  the  benign  influence  of 
good  laws  under  a  free  government — the  ever  favorite  object 
of  my  heart — and  the  happy  reward,  as  I  trust,  of  our 
mutual  cares,  labors,  and  dangers. 

George  Washington. 

United  States,  17th  September,  1796. 


INDEX. 


(The  Numbers  refer  to  the  Pages  of  the  Work.) 

ADJOURNMENTS  OF  CONGRESS,  88. 

ADMISSION, 

Of  new  states,  233. 

AMBASSADORS, 

The  President  appoints,  183. 
The  President  receives,  188. 
Immunities  of,  190. 
How  regarded,  191. 
What  states  may  send,  191. 
Their  functions,  191. 

AMENDMENTS  TO  THE  CONSTITUTION, 

Mode  of,  240. 

Exceptions  to  power  of,  240. 

History  of,  246. 

ANNAPOLIS, 

Convention  at,  45. 

APPEALS, 

From  state  courts,  207. 

APPOINTMENTS, 

In  the  recess  of  the  Senate,  185. 
How  long  they  last,  185. 

APPORTIONMENT  OF  REPRESENTATIVES,  59. 
Slaves  considered  in,  60. 
Mode  of,  62. 

APPROPRIATIONS,  141. 

ARMS, 

Right  to  bear,  250. 

ARMY, 

Appropriation  for,  125. 
Government  of,  126. 
Commander-in-Chief  of,  176. 

303 


304  INDEX. 

ARREST, 

Members  of  Congress  exempt  from,  except,  90,  et  scq. 

ARTICLES  OF  CONFEDERATION, 
Final  ratification  of,  42. 
When  laid  before  Congress,  42. 
When  agreed  to  by  Congress,  42. 
Powers  confided  to,  42. 
Result  of,  44. 
Washington's  opinion  of,  44. 

ASSOCIATE  JUSTICES, 

Of  Supreme  Court,  194. 
Salary  of,  195. 

By  whom  appointed,  183,  202. 
Tenure  of  office,  201. 

ATTAINDER, 

Congress  and  the  states  prohibited  to  pass  bills  of,  137,  148. 
Of  treason,  222,  et  eeq. 

ATTORNEY-GENERAL, 
Duties  of,  179. 

BAIL, 

WThatis,  218. 
Excessive,  218. 
When  admitted,  218. 

BANKRUPT  LAWS, 

Congress  may  pass,  112. 

What  are,  112. 

In  what  cases  the  states  may  pass,  113,  154, 

BILLS  OF  CREDIT, 

The  states  cannot  emit,  146. 
What  are,  146. 

BRIBERY, 

What  is,  78. 

BURKE,  MR., 

His  opinion  of  a  senate,  65. 

CABINET,  THE, 

Of  whom  composed,  178,  179. 

CAPTURES, 

Rule  of  Congress  respecting,  124. 

CASE, 

Meaning  of,  203. 

In  law,  203. 

In  equity,  203. 

Several  descriptions  of,  203,  et  eeq. 


INDEX.  305 


CENSUS, 

Required  to  be  taken,  61. 
When  the  first  was  taken,  61. 

CHARGES  D'AFFAIRES,  191. 
CHARTERS, 

How  divided,  151. 

Power  of  the  states  respecting,  J  51,  152. 
CHIEF  JUSTICE, 

Presides  when  the  President  is  impeached,  76. 

Salary  of,  195. 

By  whom  appointed,  201. 

Tenure  of  office,  201. 
CIRCUIT  COURTS,  196. 

How  constituted,  196. 

Terms  of,  201. 

When  justice  of  S.  C.  must  hold,  196. 

Jurisdiction  of,  196. 

CLERKS, 

Of  courts,  200. 

By  whom  appointed,  200. 

By  whom  removable,  200. 

COINAGE  OF  MONEY,  114. 

The  states  prohibited  to  coin,  145. 

COLONIES, 

Union  of,  37. 

Distinet  government  of,  37. 

COLUMBIA,  DISTRICT  OF, 

May  be  taxed,  103. 

COMMANDER-IN-CHIEF, 

Of  the  army  and  navy,  176. 

Of  the  militia  when  in  actual  service,  175. 

Who  is,  175. 

COMMERCE, 

Condition  of  under  the  Confederation,  104. 

Congress  has  power  to  regulate,  105. 

What  regulation  of  means,  105. 

Meaning  of,  105. 

Regulation  of,  variously  applied,  106. 

Power  over,  exclusive  in  Congress,  106. 

What  laws  states  may  pass  respecting,  106,  et  aeq. 

With  the  Indians,  109. 

COMMISSION, 

What  is,  193. 

Signing  and  delivery  of,  184. 

26  U 


306  INDEX. 

COMMON  LAW, 

In  what  states  it  prevails,  219, 
Punishment  of  treason  by,  223. 

COMPACTS, 

The  states  cannot  enter  into,  Ac,  159. 

COMPULSORY  PROCESS, 

"When  accused  persons  entitled  to,  2IT. 

CONCLUSION,  259. 

CONCURRENT  POWERS  OF  LEGISLATION, 
In  what  cases  the  states  have,  131. 

CONCURRENT  VOTE, 

What  is,  66. 

CONFEDERATION, 

See  Articles  of. 

CONFESSION, 

Of  accused  person,  214. 

CONGRESS, 

Stamp- act,  39. 

Continental,  40. 

Measures  of,  40. 

Second  meeting  of,  41. 

Powers  exercised  by  41. 

Adopt  Articles  of  Confederation,  42. 

Submit  the  Constitution,  46. 

Organiie  the  government,  46. 

Under  the  Constitution,  47. 

Of  what  it  consists,  52. 

Importance  of  two  branches,  52. 

May  alter  state  regulations  as  to  time  and  manner  of  choosing 

Senators  and  Representatives,  79. 
Regulation  as  to  manner  of  choosing  Representatives,  79. 
How  often  to  assemble,  81. 
Each  house  of,  to  judge  of  the  elections,  Ac,  of  its  own  menbers, 

82. 
Each  house  of,  determines  its  rules  of  proceeding,  83. 
Members  of,  liable  to  punishment,  85. 
May  punish  for  contempt,  when,  85. 
May  sit  with  closed  doors,  86. 
Adjournments  of,  88. 
Duration  of,  88. 
Members  of,  not  to  be  questioned  elsewhere  for  any  speech  or 

debate,  92. 
Members  of,  not  to  hold  civil  office  under  the  U.  S.,  93. 
Every  bill,  resolution,  Ac,  must  be  presented  to  the  President,  97. 
Have  power  to  lay  taxes.  94. 


INDEX.  307 


CONGRESS, 

May  borrow  money,  104. 

May  regulate  commerce,  104. 

Limitation  upon  the  power  to  regulate  commerce,  107. 

Power  over  naturalization,  and  bankruptcies,  109,  112. 

Power  with  respect  to  the  coinage  of  money,  114. 

Power  with  respect  to  counterfeiting,  116. 

Power  with  respect  to  post-offices  and  post-roads,  116. 

Power  with  respect  to  other  matters,  118,  130,  et  *eq. 

Powers  denied  to,  133-142. 

May  vest  appointment  of  inferior  officers,  184. 

When  the  President  may  convene  and  adjourn,  188. 

May  establish  inferior  courts,  195. 

Power  as  to  state  records,  <fcc,  226. 

Power  as  to  the  territories,  233-237. 

Can  make  no  law  respecting  a  religious  establishment,  247. 

CONSTITUTION, 

Definition  of,  49. 

Not  necessary  to  exist  in  visible  form,  49. 

Origin  of,  50. 

The  Roman  origin  of,  50. 

The  English,  50. 

Of  the  United  States,  50. 
CONSTITUTION  OF  THE  UNITED  STATES, 

When  adopted  by  the  Federal  Convention,  46. 

How  submitted  to  the  people,  46. 

How  ratified  by  the  people,  46. 

For  what  purpose  established,  51. 

Supremacy  of,  242. 
CONSUL, 

The  President  appoints  and  receives,  191. 

What  is,  191. 

The  President  may  revoke  exequatur  of,  192* 
CONTEMPTS  OF  CONGRESS,  85. 
CONTESTED  SEATS,  82. 
CONTRACTS, 

The  states  may  not  impair,  248-154. 
CONVENTION, 

Federal,  46. 
COPYRIGHTS,  118. 
COUNSEL, 

Accused  persons  entitled  to  have,  21T- 
COUNTERFEITING,  116. 

COURTS-MARTIAL, 

What  offences  punishable  by,  213. 
What  are,  2 IS. 


308  INDEX. 

CREDITORS, 

Of  the  government  cannot  sue,  141. 

Have  no  lien  on  public  property,  142. 

Must  apply  to  court  of  claims,  142. 
CRIMES, 

Must  be  tried  by  jury,  209,  et  seq. 

Where  tried.  209. 

Capital,  &c,  to  be  presented  by  a  grand  jury,  211-213. 

No  person  to  be  twice  tried  for  the  same,  213,  et  aeq. 
DEBTS, 

Validity  under  the  Constitution,  242. 

Validity  of  under  changes  in  the  government.  242. 
DEPARTMENTS, 

Of  government,  52. 

Under  the  Constitution,  52.  , 

Executive,  178. 
DIRECT  TAXES, 

Apportionment  of,  101. 

How  laid,  101. 
DISTRICT  COURTS,  199. 

How  composed,  199. 

Terms  of,  198. 

Jurisdiction  of,  199. 
DISTRICT  OF  COLUMBIA,  125. 

Exclusive  jurisdiction  of  Congress  over,  128. 

Not  a  state,  128. 

Represented  in  Congress,  129. 
DUTIES, 

May  be  laid  by  Congress,  99. 

What  are,  101. 

Must  be  uniform,  99. 
ELECTIONS, 

Frequency  of,  55. 

Who  must  prescribe  time,  place,  and  manner  of  holding,  79. 

Who  may  alter  regulations  for,  79. 

Diversity  in  time  and  mode  of,  80. 

Presidential,  169. 
ELECTORS  OF  PRESIDENT, 

When  first  chosen,  47. 

Of  House  of  Representatives,  54,  56,  57. 

Dependence  of  the  representative  upon  electors,  54. 
EQUALITY, 

Of  representation  in  the  Senate,  66. 
EXCISES, 

Congress  may  lay,  99. 

Meaning  of,  101. 

Must  be  uniform,  101. 


INDEX.  309 


EXCLUSIVE  LEGISLATION, 

When  Congress  may  exercise,  128. 
EXECUTIVE  DEPARTMENT, 

Importance  of,  163. 

How  constituted,  163. 

Opinions  in  the  Convention  respecting,  163. 

Unity  of,  163. 
EXECUTIVE  SESSIONS,  87. 
EXECUTIVE,  STATE, 

When  to  issue  writ  of  election,  63. 
EXEQUATUR, 

What  is,  191. 

Of  consul  may  be  revoked,  191-2. 

EXPORTS, 

Not  to  be  taxed,  139. 
EX  POST  FACTO  LAWS, 

Congress  and  the  states  may  not  pass,  137,  147. 

Extradition,  229,  et  seq. 
FELONY, 

What  is,  120. 

FREEDOM, 

Of  religion,  247. 

Of  speech  and  the  press,  248. 
FUGITIVES, 

From  justice,  229. 

From  labor,  230. 
GEORGIA, 

Sends  delegates  to  the  Continental  Congress,  41. 
GOVERNMENT, 

Definition  of,  49. 

Arbitrary,  50. 

Constitutional,  50. 

Departments  of,  52. 

Seat  of,  128. 

Guaranty  of  republican,  237. 
GRAND  JURY, 

Of  how  many  it  consists,  209. 

Capital  and  infamous  crimes  to  be  indicted  by,  211. 

What  courts  summoned  to  attend,  211. 

Duty  of,  211. 

Proceedings  by,  211,  et  scq. 

Intervention  of,  when  required,  212. 
HABEAS  CORPUS, 

Cannot  be  suspended,  except,  134. 

Meaning  of,  134. 


310  INDEX. 

HIGH  CRIMES  AND  MISDEMEANORS,  78. 

HIGH  SEAS, 

Meaning  of,  121. 
HOUSE  OF  REPRESENTATIVES, 

By  whom  chosen,  54. 

Vacancies  in,  63. 

Choose  their  speaker,  and  other  officers,  64. 

Have  sole  power  of  impeachment.  64. 

Initiation  of  revenue  bills  belongs  to,  95. 
IMMUNITIES, 

Of  accused  persons,  210,  et  seq. 

Of  citizens  of  the  several  states,  228. 

IMPEACHMENT, 

House  of  Representatives  have  sole  power  of,  64. 

Senate  has  sole  power  of  trying,  74. 

Process  of,  borrowed  from  England,  74-75. 

Who  may  be  impeached,  75-77. 

Judgment  in  cases  of,  76. 

Impeachable  offences,  77. 

Mode  of  proceeding  in  cases  of,  78. 

The  President  cannot  pardon  in  cases  of,  181. 

IMPOSTS, 

May  be  laid  by  Congress,  99. 

Meaning  of,  101. 

Must  be  uniform,  101. 

Cannot  be  laid  by  the  states,  155-156. 

INDIAN  TRIBES, 

How  regarded  by  the  Constitution,  109. 

Commerce  with,  may  be  regulated,  109. 
INDICTMENT, 

What  is,  212. 

Endorsement  on,  by  grand  jury,  212. 

When  to  be  furnished  the  accused,  217. 

INDIRECT  TAXES, 

What  are,  101. 
INFERIOR  COURTS, 

Congress  determines  number  of,  195. 

Tenure  of  office  of  the  judges,  201. 

The  salaries  of  the  judges,  201. 

INSPECTION  LAWS,  155. 
What  are,  155. 

INTERIOR, 

Department  of,  178-179. 

INTER-STATE  COMMERCE,  105. 


INDEX.  311 

JEOPARDY, 

No  person  to  be  put  twice  in,  <fec.,  213. 
JOINT  VOTE, 

What  is,  66. 
JOURNAL  OF  PROCEEDINGS,  86. 

Value -of,  86. 
JUDGMENT  OF  A  STATE  COURT,- 

To  what  credit  entitled,  &c,  227. 
JUDICIAL  POWER, 

In  whom  vested,  194. 

Extent  of,  202. 
JUDICIARY, 

The  President  cannot  require  the  opinion  of,  180. 

Tenure  of  office,  201. 
JURISDICTION, 

Of  Congress,  over  forts,  dock-yards,  &c,  128. 

Of  sircuit  and  district  courts,  196-200. 

Different  kinds  of,  198,  et  aeq. 
JURY, 

Not  employed  in  civil  suits  of  admiralty  jurisdiction,  204. 

Trial  by  in  criminal  cases,  209. 

What  is,  209. 

Petit,  209. 

Grand,  209. 

When  may  be  discharged  without  a  verdict,  213-14. 

Speedy  trial  by,  secured,  217. 

Trial  by,  in  civil  cases,  219. 

Facts  tried  by,  when  may  be  re-examined,  220. 
LAW  OF  NATIONS,  121. 

Offences  against,  121. 

Principle  of,  respecting  debts,  242. 
LEGISLATURE, 

Should  consist  of  two  branches,  52. 
LEVYING  WAR, 

What  is,  222. 
LICENSE, 

Importers  cannot  be  compelled  to  take  out,  by  the  states,  155. 
LICENSE  LAWS, 

States  may  pass,  106. 
MAGNA  CHARTA, 

Trial  by  jury  secured  by,  209. 

MARQUE  AND  REPRISAL, 
Letters  of,  what  are,  124. 
When  granted,  124. 
The  states  cannot  grant,  145. 


312  INDEX. 

MARSHALS, 

By  whom  appointed,  200. 

Duties  of,  200. 

Removable  by  the  President,  200-1. 
MESSAGE, 

Annual,  by  the  President,  187. 
MILITIA, 

Congress  may  provide  for  calling  forth,  126. 

Meaning  of,  127. 

President  may  call  forth,  127. 

"When  they  cease  to  be  state  militia,  127. 

Arming  and  disciplining  of,  128. 

The  Presidont  commander  of,  when,  176-177 
MINISTER,  PUBLIC, 

The  President  may  refuse  to  receive,  190. 

The  President  may  send  away,  190. 

Immunities  of,  190. 

How  many  classes  of,  190-191. 

What  class  the  United  States  appoint,  191. 

MINORS, 

May  be  enlisted  in  the  army  and  navy,  125. 

MONEY, 

Congress  may  borrow,  1&4. 
Congress  may  coin,  111. 
Where  coined,  115. 
NATURALIZATION, 

Power  of  Congress  over,  109,  et  seq. 

What  is,  109. 

Rule  of,  established  by  Congress,  110. 

NATURALIZED  CITIZENS, 

Eligible  to  the  House  of  Rep.,  57. 
Eligible  to  the  Senate,  71. 
Ineligible  to  the  Presidency,  170. 

NAVY, 

Congress  may  provide,  126. 

Origin  of,  126. 

Government  of,  126. 

Commander-in-Chief  of,  175. 

Secretary  of,  178. 
«  NECESSARY  AND  PROPER," 

Congress  may  pass  all  laws  that  are,  <fec,  130. 

NOBILITY, 

Titles  of,  not  to  be  granted  by  the  United  States,  142. 
Nor  by  the  states,  142. 
NOLLE  PROSEQUI, 

The  President  may  order,  180. 


INDEX.  313 


NOMINATIONS  TO  OFFICE, 
Who  by,  183. 

NON-CONSUMPTION,  41. 

NON-EXPORTATION,  41. 

NON-IMPORTATION,  41. 

NORTH  CAROLINA, 

Ratifies  the  Constitution,  48. 

NUNCIOS,  191. 
OATH, 

The  President  must  take,  175. 

To  support  the  Constitution,  244. 

OFFICERS  OF  THE  ARMY  AND  NAVY, 

Not  liable  to  impeachment,  77. 
How  punishable,  77,  213. 

PAPAL  LEGATES,  191. 

PARCHMENT, 

Bills  enrolled  on,  98. 
PARDON, 

The  President  may  grant,  180. 
What  is,  180. 

PASSAGE  OF  LAWS,  95-98. 

PASSENGER  LAWS,  107,  etseq. 

PASSENGERS, 

Cannot  be  taxed  by  the  states,  108. 
PATENTS,  119. 

PETITION, 

Right  of,  250. 

PHILADELPHIA, 

Federal  Convention  assembles  at,  46, 

PIRACY,  120. 

Power  of  Congress  respecting,  120. 

PLURAL  EXECUTIVE, 

Advocated  in  the  Convention,  163. 
POLICE  REGULATIONS, 

States  may  enact,  106,  et  seq. 

PORTS, 

No  preference  to  be  given  to,  140. 

POSTMASTER-GENERAL, 
Duties  of,  117-118,  179 
27 


814  INDEX. 

POST-OFFICES,  116. 

Number  of  in  Washington's  administration,  112. 

POST-ROADS,  116. 

PREAMBLE,  51. 

PRESENTS, 

Not  to  be  accepted  by  officers  of  the  United  States,  142. 

PRESIDENT  OF  THE  SENATE  PRO  TEMPORE,  74,  172. 
When  ho  acts  as  President,  J 72. 

PRESIDENT  OF  THE  UNITED  STATES, 
May  be  impeached,  75,  193. 
Who  presides  on  trial  of,  76. 
When  he  may  adjourn  Congress,  88. 
When  he  may  convene  Congress,  88. 
Every  bill  passed  by  Congress  must  be  presented  to,  96. 
May  call  forth  the  militia,  127. 
Executive  power  vested  in,  163. 
His  term  of  office,  163. 
Evils  of  frequent  election  of,  164. 
Mode  of  election,  164-168. 
Time  of  election,  168. 
Qualifications  for,  170,  et  seq. 
Disability  of,  172. 
Salary  of,  173. 
His  oath,  175. 
His  powers,  175. 

Commander-in-Chief  of  the  army,  <fec,  176-177. 
May  require  opinion  of  heads  of  departments,  179. 
May  grant  reprieves  and  pardons,  180. 
May  make  treaties  with  concurrence  of  the  Senate,  181. 
Makes  nominations  to  office,  183. 
Power  of  removal  from  office,  185. 
Power  to  fill  vacancies,  185. 
His  communications  to  Congress,  187. 
Power  to  convene  and  adjourn  Congress,  188. 
Receives  ambassadors,  <fec,  188. 
Executes  the  laws,  192. 
Commissions  officers,  193. 

PROHIBITIONS, 

Upon  the  states,  142. 

PRIVATE  PROPERTY, 

Not  to  be  taken,  <fec,  without  compensation,  216. 
PRIVILEGES  AND  IMMUNITIES, 

Of  citizens,  228. 

QUARTERING  SOLDIERS, 

Provision  respecting,  251. 


INDEX.  315 

QUORUM, 

In  Congress,  83. 

In  the  Supreme  Court,  194. 

RATIFICATION  OF  THE  CONSTITUTION,  245. 

RELIGION, 

Congress  can  make  no  establishment  of,  247. 
RELIGIOUS  TESTS, 

Prohibited,  247. 
REPRESENTATIVES, 

How  often  chosen,  54-55. 

Qualifications  for,  57. 

Qualifications  for  not  to  be  altered  by  the  states,  58. 

Apportionment  of,  59. 

Not  to  exceed  one  for  every  thirty  thousand,  61. 

How  many  each  state  is  entitled  to,  61. 

Territories  send,  63. 

Receive  compensation  for  their  services,  89. 

By  whom  paid,  90. 

Freedom  from  arrest,  90. 

Disability  as  to  office,  93. 
REPRIEVE, 

The  President  may  grant,  180. 

What  is,  180. 
REPUBLICAN  GOVERNMENT, 

Guaranty  of,  237. 

RESERVED  POWERS,  254. 
RESERVED  RIGHTS,  253. 
RETROSPECTIVE  LAWS,  148. 
REVENUE  BILLS,  95. 

RHODE  ISLAND, 

Does  not  send  delegates  to  the  Federal  Convention,  46. 
Ratifies  the  Constitution,  48. 

RULES  OF  PROCEEDING, 

Each  house  determines,  83. 
What  rules  established,  84. 

SALARY  OF  THE  PRESIDENT,  173,  et  aeq. 

SCIENCE  AND  USEFUL  ARTS, 

Power  of  Congress  with  regard  to,  118. 

SEARCH  WARRANTS,  252. 

When  can  issue,  252,  253. 

SEAT  OF  GOVERNMENT, 

Exclusive  jurisdiction  of  Congress  over,  128. 


316  INDEX. 

SECRETARY, 

Of  State,  duties  of,  178. 

Seals  civil  commissions,  193. 

Of  War,  178. 

Of  the  Navy,  178. 

Of  the  Treasury,  179. 

Of  the  Interior,  179. 
SENATE, 

Importance  of,  65. 

Members  of,  65. 

Effect  of  their  mode  of  election  and  term  of  office,  65. 

How  composed,  65. 

Equality  of  representation  in,  66. 

How  members  of,  are  chosen,  66. 

Term  of  office  of  members  of,  69. 

Classes  in,  69. 

Qualifications  of  members,  70. 

Member  of  must  be  inhabitant  of  the  state  for  which  he  is  chosen, 
72. 

President  of,  73. 

President  of,  pro  tempore,  74. 

Choose  their  officers,  except,  74. 

Try  impeachments,  74. 

Must  be  on  oath  or  affirmation  when  trying  impeachments,  75. 

Receive  compensation  for  their  services,  89. 

By  whom  paid,  89. 

Freedom  from  arrest,  90. 

Disability  as  to  office,  93. 

May  propose  amendments  to  money  bills,  95. 

Agency  in  making  treaties,  183-184. 
SENATORS, 

See  Senate. 
SHIPS  OF  WAR, 

The  states  prohibited  to  keep  in  time  of  peace,  158. 

SLAVES, 

Considered  in  apportionment  of  representatives,  60. 
SLAVE  TRADE, 

Declared  to  be  piracy,  120,  133. 

Prohibition  of,  133. 
SPEAKER  OF  THE  HOUSE, 

By  whom  chosen,  64,  73. 

When  he  takes  part  in  debate,  84. 

STAMP  ACT,  39. 

Congress,  40. 
Repeal  of,  40. 

STATE  RECORDS,  226. 

Must  be  authenticated,  226. 


INDEX.  317 


STATES,  THE, 

Powers  denied  to,  143-162. 

Privileges  of  citizens  of,  228. 

Admission  of  new,  233. 
SUPREME  COURT, 

How  instituted,  194. 

How  organized,  194. 

Annual  term  of,  194. 

Importance  of,  195. 

Tenure  of  office,  201. 

Salary  of  the  judges  of,  201. 

Original  jurisdiction  of,  205. 

Appellate  jurisdiction  of,  206. 
TAXATION, 

Of  the  colonies,  39. 

Effect  of,  39. 

By  Congress,  99. 

Implied  prohibition  upon  the  states  respecting,  160. 
TAXES, 

Direct,  apportionment  of,  60. 

Congress  may  lay,  99. 

For  what  purpose  Congress  may  lay,  99-100. 

Different  kinds  of,  100. 

May  be  extended  to  the  territories,  103. 

Cannot  be  imposed  on  passengers  by  the  states,  107. 

Capitation,  101,  139. 

Cannot  be  laid  on  exports,  139. 
TENDER, 

The  states  can  make  only  gold  and  silver  coin  a,  147. 
TERRITORIAL  COURTS,  208. 

Judges  of  removal  by  the  President,  208. 
TERRITORIES, 

Organized  send  delegates  to  Congress,  63. 

When  admitted  into  the  Union  as  states,  236. 

Congress  may  dispose  of,  <fcc,  236. 

The  right  to  govern,  235. 

Proceedings  in  as  to  change  of  government,  236. 
TERRITORY, 

Acquisition  of,  233-236. 

Meaning  of,  235. 
TONNAGE, 

States  cannot  lay  any  duty  of,  157. 

What  is  meant  by,  157. 
TREASON, 

What  is,  77,  222. 

Person  accused  of  to  have  copy  of  indictment  when,  217. 

How  many  witnesses  in  cases  of,  223. 

Punishment  of,  223-224. 

27* 


318  INDEX. 

TREASURY, 

Department  of,  178-179. 

TREATIES, 

Who  make,  181. 
Supreme  law,  243. 

TRIAL  BY  JURY, 

Speedy,  <fcc.,  secured  to  accused  persons,  217. 
In  civil  cases,  219. 

TROOPS, 

The  states  prohibited  to  keep  in  time  of  peace,  158, 

UNION, 

Of  the  colonies,  39. 
What  led  to,  39. 
Consequence  of,  39. 

VACANCIES, 

In  the  House  of  Representatives,  how  filled,  63. 

In  the  senate,  68-70. 

Power  of  the  President  to  fill,  185. 

VETO  POWER,  95-98. 

VICE-PRESIDENT, 

President  of  the  Senate,  73. 

Not  a  member  of  the  Senate,  73. 

Liable  to  impeachment,  75-77. 

Term  of  office,  163. 

Mode  of  election,  165,  et  seq. 

Time  of  election  of,  168. 

Becomes  President  when,  172,  et  seq. 

Evidence  of  a  resignation  by,  173. 

Salary  of,  173. 

WAR, 

Congress  may  declare,  120-122. 

Right  of  declaring  in  different  governments,  120. 

The  states  prohibited  to  engage  in,  159. 

Secretary  of,  178. 

Levying,  what  is,  222. 

WEIGHTS  AND  MEASURES,  113,  114. 

WITNESS, 

No  person  compelled  to  be,  against  himself,  214. 

WITNESSES, 

Accused  persons  to  be  confronted  with,  <fec,  217. 
In  cases  of  treason,  223. 

WRIT  OF  ELECTION, 

By  the  executive  of  a  state,  64. 

Yeas  and  nays  to  be  entered  on  the  journal,  86-87. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


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